COVID-19 Recovery (Fast-track Consenting) Bill

  • not the latest version

COVID-19 Recovery (Fast-track Consenting) Bill

Government Bill

277—1

Explanatory note

General policy statement

The intent of the COVID-19 Recovery (Fast-Track Consenting) Bill is to urgently promote employment growth 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 Bill seeks to achieve this by establishing new fast-track resource consenting and designation processes for infrastructure and development projects. This Bill also enables specific work on existing infrastructure to occur without the need for a resource consent.

The Bill, with the aim of supporting employment and boosting local economies, will accelerate nationwide projects and activities already planned by central and local government, as well as the private sector. The Bill also seeks to address New Zealand’s infrastructure deficit, improve long-term productivity, and encourage projects that will promote New Zealanders’ future wellbeing and resilience. This includes supporting the transition to a low-emissions economy and improving resilience to climate change and natural hazards while supporting sustainable management. Persons exercising functions and powers under this Bill must act in a manner that is consistent with the principles of the Treaty of Waitangi and with Treaty settlements.

The Bill will enable 2 categories of projects to have access to the fast-track consenting and designation processes, as follows:

  • listed projects: Schedule 2 of the Bill lists specific Government-led projects for which applications for resource consents (consent applications) or notices of requirement for designations (notices of requirement) can be submitted to the EPA to be assessed for completeness before being referred to a panel for consideration:

  • referred projects: any persons with a project can apply to the Minister for the Environment (the Minister) to fast-track their consent or designation. If approved, the Minister will recommend an Order in Council to the Governor-General to confirm that the eligible project may be referred to a panel. The Minister of Conservation will jointly make the referral decision with the Minister if any part of the project would occur in the coastal marine area.

Projects may be in the form of a single large project or comprise smaller and related projects, and they may cross local authority boundaries. A panel will consider and determine resource consents and designations for listed and referred projects and replace the role of local authorities as consenting authorities under the Resource Management Act 1991 (RMA). A panel will also make the decision on notices of requirement for designations. Appropriate environmental safeguards, as provided for under the RMA, will apply to this process. A panel must apply the purpose of the Bill alongside Part 2 of the RMA.

In addition, the Bill enables certain agencies to carry out specific works on existing infrastructure without the need for a resource consent. The works are limited to the operation, replacement, and maintenance of, and minor upgrades to, certain existing infrastructure located within the road and rail corridor and on land owned by the agencies. The specific works detailed in the Bill can be undertaken by the New Zealand Transport Agency and KiwiRail Holdings Limited. The Bill also enables local authorities, Kāinga Ora–Homes and Communities, and the Ministry of Housing and Urban Development (MHUD) to be added for specific activities and works after the Bill is enacted, through an Order in Council recommended to the Governor-General by the Minister.

The Bill is a short-term intervention to stimulate the economy and therefore the new Act will self-repeal 2 years from enactment. The Minister will still be able to recommend an Order in Council to the Governor-General to confirm eligible projects up until the 2-year deadline. Orders in Council made under this legislation (before the self-repeal date) will continue to have effect, as required, to ensure that consents and designations for these projects can be determined (and cost-recovered) beyond the self-repeal date.

Projects listed in the Bill

Schedule 2 of the Bill lists projects (listed projects) for which consent applications or notices of requirement can be submitted to the EPA to be assessed for completeness before being referred to a panel for consideration. All of these projects are led by government agencies and Crown entities and have been assessed as delivering public benefit.

When considering these projects, a panel’s function is largely limited to imposing conditions on the consent and designations. For applications for resource consents and designations required for listed projects, the panel may only decline a listed project if the resource consent or designation would not be consistent with a national policy statement, including the New Zealand coastal policy statement, or would not be consistent with the terms of a relevant Treaty settlement.

Referred projects confirmed through Orders in Council

Any person or organisation will be able to apply to the Minister to use the fast-track consenting process. When considering whether the project would help to achieve the purpose of the Bill, the Minister may consider any or all of the following matters:

  • economic benefits for communities or industries affected by COVID-19:

  • the social and cultural wellbeing of current and future generations:

  • whether the project would likely progress faster by using this process:

  • whether there is potential for the project to have significant adverse environmental effects:

  • whether the project may result in a public benefit by, for example,—

    • generating employment:

    • increasing housing supply:

    • contributing to well-functioning urban environments:

    • providing infrastructure in order to improve economic, employment, and environmental outcomes, and increase productivity:

    • improving environmental outcomes for coastal or freshwater quality, air quality, or indigenous biodiversity:

    • minimising waste:

    • contributing to New Zealand’s efforts to mitigate climate change and transition more quickly to a low-emissions economy (in terms of reducing New Zealand’s net emissions of greenhouse gases):

    • promoting the protection of historic heritage:

    • strengthening environmental, economic, and social resilience, in terms of managing the risks from natural hazards and the effects of climate change.

A project is not eligible to be referred to a panel—

  • if it involves an activity that is described as a prohibited activity in relevant plan or national environmental standard;

  • if it would occur on land returned under a Treaty settlement or within a customary marine title area; or

  • if it would have more than a minor adverse effect on the exercise of a protected customary right, without the prior written approval of the relevant landowners (with respect to Treaty settlements) or holders of relevant customary marine title orders or protected customary rights recognition orders recognised under the Marine and Coastal Area (Takutai Moana) Act 2011.

If the Minister is satisfied that the application is eligible and will help to achieve the purpose of the Bill, and the Minister decides to not decline the application, the Minister will undertake targeted consultation with relevant local authorities and appropriate ministerial colleagues. The Minister may also choose to invite written comments from others.

Before the Minister decides to refer a project to an expert consenting panel, the Minister must also obtain and consider a report by the Office for Māori Crown Relations—Te Arawhiti on Treaty settlement obligations and interests under the Marine and Coastal Area (Takutai Moana) Act 2011. This report will contain the following information:

  • the relevant iwi authorities and Treaty settlement entities in the project area:

  • the Treaty settlements (Acts and deeds) that relate to the project area:

  • the relevant principles and provisions in those Treaty settlements, including those that relate to the composition of a decision-making body for the purposes of the RMA:

  • any recognised negotiation mandates for, or current negotiations for, Treaty settlements that relate to the project area:

  • any court orders that recognise protected customary rights or customary marine title in relation to the project area.

The Minister will have discretion to reject an application for any reason at any point prior to the Order in Council being made.

The Ministry for the Environment will provide advice to support the Minister’s decision on whether to accept an application and refer a project to a panel through an Order in Council. The decision-making criteria that apply to resource consents and designations in the RMA will also apply to referred projects, except that panels must apply the purpose of the Bill alongside Part 2 of the RMA.

Expert consenting panel processes

The panels will be responsible for considering applications and determining resource consents and designations for listed and referred projects.

A panel convener who is a sitting or retired Environment Judge will convene the panels and appoint panel members and chairpersons of panels. The convener can choose to be a chairperson.

The panels will be chaired by a current or retired Environment Court Judge (or other judge, or a suitably qualified lawyer with resource management expertise) and must include a member of (or person nominated by) the relevant local authorities and include a member nominated by the relevant iwi authorities. Each panel must collectively have—

  • knowledge, skill, and expertise relating to resource management:

  • technical expertise relevant to the project:

  • expertise in tikanga Māori and mātauranga Māori.

The Environmental Protection Authority will assess consent applications and notices of requirement for completeness and provide secretariat support and other services to the panels.

The panels will determine the consent applications and notices of requirement and follow a fast-track resource consent (or notice of requirement) process, as follows:

  • information requirements are tailored for consent applications and notices of requirement:

  • instead of giving public notice or limited notice of consent applications or notices of requirement, a panel will invite comments on the application from persons specified in the legislation and the Orders in Council (if applicable) not later than 10 working days after the application is first lodged:

  • persons who have been invited to comment have 10 working days after the date on which the invitation was given to provide comments:

  • there is no requirement to hold a hearing:

  • in making its decision, a panel will be required to—

    • apply Part 2 of the RMA alongside the purpose of the new Act:

    • act consistently with the principles of the Treaty of Waitangi:

    • act consistently with any relevant Treaty settlements:

    • have regard to relevant plans, regional and national policy statements, and other documents, similarly to the way that a decision-maker would under the RMA:

  • a panel must issue its decision on the application within 25 working days of the date it specifies for receiving comments on the application:

  • a panel can double this 25–working-day time frame if the scale of the project that is the subject of the application means it cannot be determined within that time frame.

The overall processing time frame will be reduced, because a panel will have no additional ability to extend time frames (other than the additional 25 working days above), limited ability to suspend applications (see clause 6 of Schedule 6), and there are restricted appeal rights.

For projects including multiple activities, of any size, panels may issue decisions in stages to enable initial works to be started while further details or later stages of the project are worked through in subsequent approval processes.

Panels will also make decisions for notices of requirement lodged by requiring authorities to confirm designations. Under standard RMA processes, requiring authorities are the decision makers and the relevant local authority only make recommendations. It is not appropriate for a requiring authority to make the decision on a designation and conditions when the fast-track process is being used, given the lack of a merits appeal. Therefore, the panels will make the decision on a designation, which is similar to the decision-making framework for Boards of Inquiry considering proposals of national significance under the RMA.

The applicant or requiring authority for the listed and referred projects is responsible for the costs incurred by the expert consenting panel and the EPA in performing their duties and functions under this legislation.

Work on infrastructure

The Bill enables specific works for certain existing public infrastructure to be undertaken by certain agencies as of right, subject to performance standards that follow best-practice guidelines. This process is limited to the operation, replacement, and maintenance of, and minor upgrades to, existing public infrastructure located solely within the road and rail corridor and on land owned by certain agencies. This is to ensure that this provision relates to the maintenance and minor upgrading of existing infrastructure and not to new projects where infrastructure currently does not exist.

Currently the specific works and performance standards have been developed for the New Zealand Transport Agency and Kiwirail Holdings Limited. Kāinga Ora–Homes and Communities, MHUD, and local authorities will be able to access this Bill when their specific works and performance standards are added through an Order in Council.

As a safeguard, this process is not available where the proposed activity is categorised as a discretionary, non-complying, or prohibited activity in the relevant council plan. The works will not be able to be undertaken in sites of cultural or historical significance, within outstanding water bodies or wāhi tapu sites, or if the work requires a permanent water take that would require a resource consent under the relevant plan or proposed plan. The works must also comply with performance standards that follow best-practice guidance and site management.

The agencies must partner with iwi and hapū groups and Treaty settlement entities that have interests in the area of the proposed work, to identify sites of cultural significance and how to manage them adequately. They must also provide a notice of intention to the relevant local authorities and iwi, hapū, and Treaty settlement entities before work is undertaken, detailing the extent of works, any protocols or management plans needed, and how monitoring will occur.

Local authorities will be responsible for compliance, monitoring, and enforcement to ensure that agencies meet the performance standards and will take appropriate action if necessary. The Bill will provide for local authorities to recover costs and for iwi and hapū to recover costs incurred in relation to identifying wāhi tapu and other sites of cultural significance. This Bill will authorise regional council activities for a duration of 15 years, to avoid the need to immediately reconsent ongoing activities that would otherwise require a resource consent (such as discharges) once the Act is repealed.

Treaty of Waitangi

The Bill includes an overarching Treaty of Waitangi clause, stating that the Minister and all persons exercising functions and powers under the Bill must act in a manner that is consistent with the principles of the Treaty of Waitangi and with Treaty settlements.

As outlined earlier, the Office for Māori Crown Relations—Te Arawhiti will be required to provide a report to the Minister that includes information on the relevant iwi authority, any Treaty settlement entities in the project area, any Treaty settlements in the project area, and interests under the Marine and Coastal Area (Takutai Moana) Act 2011.

This report will assist the Minister to comply with clause 6 of the Bill, which requires the Minister to act in a manner consistent with the principles of the Treaty of Waitangi and Treaty settlement legislation when making a determination as to whether a project should be referred to a panel. This report will also be provided to a panel if the project is referred for consideration. It will be the responsibility of a panel to ensure any consents granted and any designations confirmed, including any conditions, are consistent with the principles of the Treaty and any Treaty settlements.

Public participation and appeal rights

To support the intent of the fast-track process to accelerate consenting and recovery from the economic and social impacts of COVID-19, the Bill provides the Government with a range of powers to by-pass usual consenting process steps, including public consultation, hearing processes, and appeals to the Environment Court.

As described in the section on the panel process, the Bill does not require public or limited notification of an application. Instead the panel will be required to invite comments on the application from persons specified in the Order in Council and the persons expressly listed in Schedule 6. The Bill provides reduced time frames compared to standard RMA processes for the nominated persons to provide their comments. The consent process does not include a requirement to hold a hearing. If a panel does hold a hearing, it may grant leave to allow cross-examination.

Appeals against a panel decision on a consent application (or notice of requirement to confirm a designation) are limited to a point of law appeal to the High Court and a further right of appeal to the Court of Appeal. There will be no further right of appeal beyond the Court of Appeal. Any application for judicial review will need to be filed at the same time as a point of law appeal to the High Court.

The following persons will be able to lodge an appeal:

  • the consent applicant or requiring authority, as the case requires:

  • any relevant local authority:

  • the Attorney-General:

  • any person who provided comments in response to an invitation by the panel:

  • any person who has an interest in the decision appealed against that is greater than that of the general public.

Departmental disclosure statement

The Ministry for the Environment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Clause by clause analysis

Clause 1 provides that the title of this Act is the COVID-19 Recovery (Fast-track Consenting) Act 2020.

Clause 2 provides that the Bill (once enacted) comes into force on the day after the date it receives the Royal assent.

Clause 3 provides that the Act is repealed on the second anniversary of the date on which it received the Royal assent.

Part 1Preliminary provisions

Clause 4 sets out the purpose of the Bill. It is to urgently promote employment growth 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.

Clause 5 sets out an overview of the Bill.

Clause 6 sets out the relationship between the Treaty of Waitangi and Treaty settlements and the Bill. It provides that all persons performing functions and exercising powers under the Bill to act in a manner that is consistent with—

  • the principles of the Treaty of Waitangi; and

  • Treaty settlements.

Clause 7 is an interpretation clause. Some of the key and distinctive terms include the following:

  • application for referral which is an application under clause 20 to have a project referred to an expert consenting panel:

  • consent application which means an application for a resource consent for a listed or referred project:

  • expert consenting panel or panel which means a panel appointed under Schedule 5 to determine a consent application or notice of requirement for a listed or referred project:

  • listed project,which means a project listed in Schedule 2:

  • national rail corridor, which means the existing network of railway lines, railway premises, and railway infrastructure:

  • national road corridor, which means the existing network of state highways, including the areas under a bridge:

  • referral order, which means an Order in Council under clause 27 to refer a project to an expert consenting panel:

  • referred project, which means a project that is referred (by a referral order) to an expert consulting panel:

  • work on infrastructure, which means work that meets the criteria set out in clause 29.

Clause 8 provides that the transitional, savings, and related provisions of the Bill are set out in Schedule 1.

Clause 9 provides that the Act binds the Crown.

Clause 10 sets out procedural principles to be applied. Every person performing functions and exercising powers under the Bill must take all practicable steps to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions or powers being performed or exercised.

However, a failure to comply with this section does not itself invalidate the exercise of a power or the performance of a function or duty under the Bill.

Clause 11 provides that documents to be served under the Bill (other than court documents) must be served electronically unless it is not practicable to do so.

Clause 12 describes the relationship between the Bill and the Resource Management Act 1991 (RMA).

Clause 13 provides that nothing in the Bill limits or affects any right of judicial review a person may have in respect of any matter to which the Bill applies. Subclauses (2) and (3) provide for situations where a person wishes to apply for judicial review and also appeal to the High Court under Schedule 6.

Part 2Fast track consenting

Subpart 1—Projects considered by expert consenting panel

Listed and referred projects

Clause 14 requires an expert consenting panel to be appointed under Schedule 5 for—

  • listed projects, which are the projects described in Schedule 2 that can immediately utilise the fast-track consenting process; and

  • referred projects, which are projects that may utilise an expert consenting panel only if the Minister refers them to a panel by Order in Council.

Clause 15 allows the authorised persons for a project to make consent applications and lodge notices of requirement in accordance with Schedule 6 instead of under the RMA. Authorised persons are identified for a listed project in Schedule 2 and for a referred project in the Order in Council made under clause 27. Schedule 6 sets out how the applications and notices will be considered by an expert consenting panel, and how the panel makes decisions. The Schedule 6 process cannot be used to change or cancel an existing consent, but may be used to alter an existing designation.

Referral of projects

Clause 16 specifies who decides whether to refer a project to a panel. Subclause (1) requires decisions about a project that would occur in the coastal marine area to be made jointly by the Minister for the Environment and the Minister of Conservation. Decisions about other projects will be made by the Minister for the Environment alone. Subclause (2) provides for references in subpart 1 to the Minister to be read as a reference to both Ministers, in relation to anything that subclause (1) requires both Ministers to decide.

Clause 17 provides that the obligations under clause 6 (Treaty of Waitangi) are satisfied, in relation to a decision to refer a project to a panel, if the Minister first obtains and considers a report from the Office for Māori Crown Relations—Te Arawhiti that identifies relevant interests. Once a decision is made on the application, the report obtained under this clause is made public: see clause 25(3).

Clause 18 sets the criteria for referred projects. Nothing can be referred to a panel unless it meets these criteria. The criteria include a requirement that the Minister be satisfied that the project will help to achieve the purpose of the Act, and clause 19 lists matters the Minister may consider when making that assessment.

Clause 20 is about how to apply to have a project referred to a panel. Applications must be made on the form approved by the chief executive of the Ministry for the Environment and published on the Ministry’s website. The application must include the information listed in subclause (3), but at a general level of detail rather than the level of detail that would be needed to support a consent application or notice of requirement. The intention is to provide sufficient information to inform the Minister’s decision on whether to refer the project to a panel.

Clause 21 sets out what happens once an application for referral is made. The Minister may decline the application, for any reason, without taking any further steps (see clause 23). Otherwise, the Minister must send a copy of the application to interested local authorities and Ministers and invite them to provide written comments. The time frame for providing comments, which applies to everyone except Ministers, is 10 working days from the receipt of the copy of the application. The Minister has a discretion to consider late comments.

Clause 22 provides for the Minister to request further information about an application from the applicant or relevant local authorities.

Clauses 23 and 24 are about decisions on an application for referral:

  • clause 23 is about how and when an application may be declined. A decision to decline may be made in respect of all or part of the project that is the subject of the application, and the Minister may decline some parts of an application and accept others:

  • clause 24 is about how and when all or part of an application may be accepted; it provides for a range of related decisions to be made.

Clause 25 requires the Minister to give notice of the decisions made on an application for referral, and the reasons for them, to the applicant and the various persons and groups who have an interest in the matter. The Minister’s decisions and reasons must be published on the Ministry’s website, along with the report obtained on the application under clause 17 (if applicable).

Clause 26 sets out how a project is referred to a panel, which requires the Minister to—

  • recommend that an Order in Council (a referral order) be made under clause 27; and

  • forward all relevant information about a referred project to the EPA, and to the panel convenor when one is appointed.

Clause 27 provides for an Order in Council to be made to refer a project to the panel and give effect to other decisions made by the Minister under clause 24. The order can only be made on the Minister’s recommendation.

Subpart 2—Work on infrastructure

Clause 28 provides for certain activities to be undertaken, in the course of work on infrastructure, as permitted activities. Permitted activities do not require resource consent under the RMA. Clauses 29 to 32 set the preconditions for undertaking any activity as a permitted activity in reliance on subpart 2.

Clause 29 sets the criteria for work on infrastructure. In the Bill as introduced, the only agencies authorised to carry out work on infrastructure in reliance on subpart 2 are KiwiRail Holdings Limited and the New Zealand Transport Agency. The agencies that may be added later by Order in Council (see clause 34) are Kāinga Ora–Homes and Communities, the Ministry of Housing and Urban Development, and local authorities. The work must be on existing infrastructure, the infrastructure must be on land in which the agency has an ownership or other legal interest, and the landowner (if not the agency) must have given written permission for the work.

Clause 30 sets the criteria for permitted activities. They must be identified in Schedule 4 as a permitted activity and not excluded by clause 31, and they must comply with the permitted activity standards set out in Schedule 4. The Bill as introduced sets permitted activities and permitted activity standards for KiwiRail Holdings Limited and the New Zealand Transport Agency. Permitted activities and permitted activity standards for other agencies may be added later by Order in Council (see clause 34). However, the permitted activity standards relating to iwi and hapū engagement and notices of intention will always apply (see Part 1 of Schedule 4).

Clause 31 describes various activities that are excluded from being carried out as permitted activities in reliance on subpart 2.

Clause 32 requires an agency seeking to carry out work on infrastructure in reliance on subpart 2 to comply with any permitted activity standard that requires something to be done before the work commences. These include the requirement to begin an iwi and hapū engagement process and serve notices of intention (see Part 1 of Schedule 4).

Clause 33 requires an agency, when carrying out work on infrastructure in reliance on subpart 2, to comply with the duties under the RMA to avoid unreasonable noise and avoid, remedy, or mitigate adverse effects.

Clause 34 provides for an Order in Council to be made to name other agencies that may carry out work on infrastructure in reliance on subpart 2. This is done by amending Schedule 4 to—

  • add the agency’s name to clause 1 of that schedule; and

  • specify the activities that the agency can carry out as permitted activities, including setting any restriction on where the infrastructure must be located and specifying any activities that are excluded (in addition to those set out in clause 31); and

  • specify the permitted activity standards that the agency must comply with (in addition to the permitted activity standards in Part 1 of Schedule 4, which apply generally).

Clause 35 requires local authorities to monitor activities carried out as permitted activities in reliance on subpart 2 and take enforcement action under the RMA as appropriate. It also allows local authorities to fix charges, payable by agencies carrying out work on infrastructure, for monitoring the activities. Instead of fixing charges, a local authority may rely on charges already fixed under the RMA.

Schedule 1

Schedule 1 contains transitional, savings, and related provisions. Those provisions are generally fairly conventional in that they provide for the repealed Act and any revoked Order in Council made under the Act to continue in force for the purposes of completing any matter commenced under the Act or Order in Council before their repeal or revocation.

However, the provisions have 2 features that require special mention.

Clause 3 enables an Order in Council to be amended after its revocation. This is in recognition that the transitional provisions may have effect for a long time (possibly a decade) and that changes to the transitional regulatory regime may be required in that period. An application for a referral order must be lodged no later than 6 months before the repeal of the Act to enable sufficient time to make a decision and a referral order (if appropriate) before the Act is repealed.

Schedule 2

Schedule 2 sets out 16 listed projects with the name of the project, the person or entity authorised to undertake the project, a description of each project, and the approximate geographical area in which each project is to be carried out described in separate columns.

The projects are as follows:

  • LP01 Te Ara Tūpua—Ngauranga to Pētone Cycleway and Walkway:

  • LP02 Northern Pathway—Westhaven to Akoranga cycleway and walkway:

  • LP03 Wellington Metro Upgrade Programme:

  • LP04 Papakura to Pukekōhe Rail Electrification:

  • LP05 Britomart East Upgrade:

  • LP06 Te Pā Tāhuna Residential Development:

  • LP07 Unitec Residential Development:

  • LP08 Papakāinga Development—Kaitaia:

  • LP09 Papakāinga Development—Point Chevalier, Auckland:

  • LP10 Papkāinga Development—Whaingaroa, Raglan:

  • LP11 Papakāinga Development—Waitara, Taranaki:

  • LP12 Papakāinga Development—Chatham Islands:

  • LP13 Papakāinga Development—Rāpaki, Christchurch:

  • LP14 Picton Ferry Terminal Redevelopment:

  • LP15 Papakura to Drury State Highway 1 Improvements:

  • LP16 Kopenui Water Storage Reservoir, Kaikohe.

Schedule 3

Schedule 3 sets out the requirements for a referral order made under clause 27 (referring a project to an expert consenting panel) as follows:

  • clause 2 sets out the information that must be contained in the order identifying the project:

  • clause 3 requires the order to make any provision that is necessary to give effect to the Minister’s decisions under clause 24:

  • clause 4 requires the order to include a statement of the Minister’s reasons for the decisions made under clause 24.

Schedule 4

Clause 1 is an application provision. It—

  • lists the agencies that may carry out work on infrastructure in reliance on subpart 2 of Part 2; and

  • states that the schedule sets out the activities that the agencies can carry out as permitted activities in reliance on subpart 2 of Part 2 and the permitted activity standards that the agencies must comply with.

In the Bill as introduced, only KiwiRail Holdings Limited and the New Zealand Transport Agency are listed in clause 1. However, this clause may be amended by an Order in Council made under clause 34 to add—

  • Kāinga Ora–Homes and Communities:

  • Ministry of Housing and Urban Development:

  • any local authority.

Clause 2 is an interpretation provision.

Clause 3 applies the rules about incorporation by reference set out in Schedule 1AA of the RMA, rather than the rules set out in subpart 2 of Part 3 of the Legislation Act 2012.

Part 1

Part 1 of the schedule (clauses 4 to 9) contains the permitted activity standards that apply generally, which relate to iwi and hapū engagement and notice of intention.

Iwi and hapū engagement

Clause 5 sets out a process requiring an agency to engage with iwi, hapū, and Treaty settlement entities before undertaking works.

Clause 6 sets out what happens if an agency tries to engage as required by clause 5 but gets no response.

Clause 7 sets out rules that apply if any sites that require a management plan are identified during the engagement referred to in clause 5.

Notices of intention

Clause 8 requires an agency to serve a notice of intention on relevant iwi authorities, hapū, and Treaty settlement entities before it undertakes works.

Clause 9 requires an agency to serve a notice of intention on certain local authorities before it undertakes works.

Part 2

Part 2 of the schedule (clauses 10 to 36) sets out,—

  • in subpart 1 (clause 11), the permitted activities for KiwiRail Holdings Limited and the New Zealand Transport Agency; and

  • in subpart 2 (clauses 12 to 36), the permitted activity standards with which those activities must comply.

Under clause 11, the permitted activities for KiwiRail Holdings Limited and the New Zealand Transport Agency are any activity for the operation, maintenance, replacement, or minor upgrade of existing infrastructure that is located in or on the national road corridor or the national rail corridor. A minor upgrade is defined in clause 11(2). These activities are permitted only if they not excluded by clause 31 of the Bill and if they are carried out in compliance with the permitted activity standards in Part 2 of this schedule.

If more agencies are added to clause 1 of this schedule, additional Parts will be added to this schedule to set out the permitted activities and permitted activity standards for those agencies.

The permitted activity standards that apply to KiwiRail Holdings Limited and the New Zealand Transport Agency are described below.

Ground disturbance

Clause 12 sets out rules for carrying out earthworks (including diversion, damming, and discharge of sediment-laden water).

Clause 13 sets out rules applying to the drilling of geotechnical boreholes (including groundwater monitoring).

Clause 14 sets out rules governing groundwater discharge in connection with dewatering and construction.

Works within beds of rivers

Clause 15 sets out rules about the construction of temporary and permanent bridges and culverts.

Clause 16 sets out safeguards to enable fish to pass through watercourses while works are being undertaken on those watercourses.

Vegetation

Clause 17 sets out measures that must be taken by an agency undertaking works to prevent biosecurity risks.

Clause 18 sets out rules about the removal and replanting of vegetation in areas affected by works.

Clause 19 regulates the removal of vegetation and the disturbance of habitat within a significant natural area or a significant ecological area.

Operational requirements

Clause 20 sets out the safeguards that must be applied to avoid contamination of a site by contaminants from equipment used for an activity.

Clause 21 sets out rules for the transport, disposal, and tracking of soil and other materials that are removed from sites.

Clause 22 regulates the way in which the discharge of dust is to be managed.

Clause 23 sets out rules designed to avoid, remedy, or mitigate adverse construction noise and vibration effects.

Clause 24 limits the information that may be included in construction signage.

Clause 25 requires new permanent lighting to comply with a specified Australian New Zealand standard that deals with lighting for roads and public spaces.

Clause 26 sets out rules about the design and location of construction yards.

Clause 27 requires an emergency response plan to be prepared dealing with the use, storage, and handling of hazardous substances.

Clause 28 limits the height of a noise attenuation wall or structure to 3 metres.

Clause 29 requires the New Zealand Transport Agency to assess and mitigate road traffic noise in accordance with the provisions of that clause.

Stormwater management

Clause 30 sets out rules that must be followed in managing stormwater from roads.

Clause 31 regulates the diversion and discharge of stormwater run-off from new impermeable surfaces within the road corridor or rail corridor.

Works within coastal marine area

Clause 32 contains rules—

  • requiring any disturbance to the substrate of a coastal marine area to be remedied or restored:

  • limiting the clearance or disturbance of vegetation within the coastal marine area to a maximum area of 100 square metres.

Clause 33 limits the extent of any change to an area occupied by an existing structure or reclamation or drainage system in the marine coastal area.

Clause 34 regulates dredging within the marine coastal area.

Clause 35 regulates the removal of mangroves.

Monitoring

Clause 36 requires an agency to undertake monitoring to ensure that it complies with the permitted activity standards in this schedule and to pay reasonable costs incurred by a local authority in monitoring compliance by the agency with these standards.

Schedule 5

Clause 1 sets out the purpose of the expert consenting panels. The purpose of an expert consenting panel is to ensure that decisions are made on—

  • consent applications for listed and referred projects:

  • notices of requirement for designations or to alter a designation for listed and referred projects.

Clause 2 provides for the appointment by the Minister of a panel convener whose main function is to appoint the members of panels. A panel convener may be removed by the Minister at any time for just cause and may resign by notice in writing to the Minister. The panel convener, unless they earlier resign or are removed from office, continues in office until their successor is appointed.

Under clause 3, up to 4 persons may be appointed as a member of an expert consenting panel. The members of the panel must include—

  • 1 person from the relevant local authorities or a person nominated by those authorities; and

  • 1 person nominated as the representative of the relevant iwi authorities.

In certain circumstances (described in clause 3(5)), the membership of a panel may exceed 4 members. The decision that a panel may exceed 4 members is a matter for the discretion of the panel convener.

Clause 4 provides that the chairperson of a panel may be—

  • a Judge or retired Judge appointed by the panel convener; or

  • the panel convener (if the panel convener is a Judge or retired Judge); or

  • in certain circumstances, a suitably qualified lawyer with experience in resource management law.

In the event of an equality of votes, the chairperson of the panel has a casting vote. A panel has a quorum of 3 members.

Clause 5 sets out the obligations of the panel convener or panel in relation to Treaty settlements.

Clause 6 requires a panel convener to set the terms of reference for a panel.

Clause 7 empowers a panel convener to appoint a replacement panel member.

Clause 8 sets out the knowledge and experience that the panel members are, collectively, required to have.

Clause 9 provides for the remuneration of the panel convener and panel members.

Clause 10 provides for the resignation and removal of panel members. A member of a panel may resign at any time by notice in writing to the panel convener. The panel convener may remove any member for just cause.

Procedural and administrative matters

Clause 11 gives a panel a broad discretion to regulate its own procedures in the manner it thinks appropriate, without procedural formality and in a manner that best promotes the just and timely determination of an application. This broad discretion is subject to any other provisions of the Act or regulations made under the Act. Clause 11 also enables the appointment of special advisors and technical advisors and allows the panel to use remote access facilities for meetings. A panel is required to keep a full record of its proceedings.

Clause 12 requires the EPA to provide secretariat support to a panel.

Clause 13 provides that a panel member is not liable for anything that the member does in good faith in performing or exercising the functions, duties, or powers of the panel.

Clause 14 provides for the recovery of costs by the EPA.

Clause 15 applies certain provisions of the Local Government Official Information and Meetings Act 1987 to a panel.

Schedule 6

Clause 1 sets out the scope of Schedule 6, namely—

  • the requirements to be met when lodging a consent application or a notice of requirement for a designation or to alter a designation:

  • the requirements a panel must comply with when determining a consent application or notice of requirement:

  • the appeal rights relating to a panel’s decision on any of those matters.

Part 1—Applications for resource consents and notices of requirement for designations

Consent applications and notices of requirement

Clause 2 sets out some general requirements in relation to lodging consent applications and notices of requirement.

Clause 3 requires the EPA, within 5 working days, to determine whether a consent application or notice of requirement satisfies certain prescribed criteria, and if it does, the EPA must refer the application or notice to a panel for determination.

Clause 4 provides that if an application or notice of requirement does not satisfy certain specified criteria the application or notice must be returned to the applicant.

Clause 5 enables a consent application or notice of requirement to be withdrawn at any time before a panel makes a determination on it.

Clause 6 describes when the processing of consent applications or notices of requirement may be suspended and sets out rules about the notification of decisions to suspend processing and the resumption of processing.

Clause 7 provides for the sharing of information by local authorities with the EPA, on request by the EPA. A local authority is entitled to set, and recover from the EPA, a reasonable charge for the supply of information to the EPA.

Clause 8 enables the EPA to make administrative decisions that are incidental or ancillary to the conduct of the panel.

Information requirements for consent applications for listed and referred projects

Clause 9 lists the information that a consent application for a listed or referred project must provide, including certain assessments of the proposed activity against—

  • Part 2 of the RMA and the purpose of this Bill; and

  • any relevant provisions in certain national, regional, and district planning documents; and

  • any Treaty settlements that apply in the project area.

A cultural impact assessment prepared by the relevant iwi or hapū is also required.

Clauses 9 to 13 reflect, as far as relevant, the information requirements of Schedule 4 of the RMA.

Clause 10 sets out the information that must be included in an assessment of an activity’s effect on the environment (which is one of the items of information required by clause 9).

Clause 11 describes the matters that must be included in an assessment of the environmental effects of an activity.

Clause 12 sets out additional information that must be included in a consent application for a subdivision in a project area or for a reclmation.

Information requirements for notices of requirement for listed and referred projects

Clause 13 lists the information that must be included in a notice of requirement for a listed or referred project.

General requirement

Clause 14 requires the information that is to be provided under clauses 9 to 13 to be provided in sufficient detail to correspond to the scale and significance of the effects that the activity is anticipated to have on the environment.

Applications relating to activities in coastal marine area

Clause 15 requires applications for coastal permits to undertake an aquaculture activity to be copied to the Director-General of Primary Industries.

Clause 16 sets out rules to apply where there is an application to subdivide land which, in whole or in part, is in the coastal marine area.

Processing of consent applications and notices of requirement

Clause 17 prohibits a panel from giving public notice or limited notification of a consent application or notice of requirement. However, for both listed and referred projects, a panel must invite comments from certain people or groups of people (subclauses (4) to (7)).

Clause 18 sets out some general requirements for invitations issued by a panel under clause 17(2) and for the responses provided to the EPA.

Clause 19 provides that a panel is not required to conduct a hearing in respect of a consent application or notice of requirement, and clause 20 describes the procedure to be adopted by a panel if it decides in its discretion to hold a hearing.

Clause 21 empowers the Minister to direct a panel to which a consent application or notice of requirement has been provided to cease processing, or further processing, the application or notice.

Clause 22 enables a consent applicant or a requiring authority to make a request to the EPA asking that a panel suspend processing a consent application or notice of requirement or cease the suspension.

Clause 23 provides that if processing of a consent application or notice of requirement is suspended under clause 22, the application or notice may in certain circumstances be returned to the applicant.

Clause 24 enables a panel to direct the EPA to obtain further information before the panel issues its final decision.

Certificate of compliance

Clause 25 enables a consent applicant or requiring authority to apply, as part of its consent application or notice of requirement, for a certificate of compliance under section 139 of the RMA. The panel determining the application may issue a certificate.

Resource Management Act 1991 processes may be used for listed and referred projects

Clause 26 provides that a person authorised to make a consent application or lodge a notice of requirement under the Bill may, in relation to a listed or referred project, apply under the Resource Management Act 1991 for a resource consent or designation. A person who makes such an application must withdraw it before making a consent application or lodging a notice of requirement under this Bill.

Part 2—Determination of consent applications and notices of requirement by panels

Resource consents for listed projects

Clauses 27 and 28 set out the matters relevant for a panel’s consideration of a consent application and comments received on it in relation to a listed project. These matters reflect, as far as they are relevant, certain matters that must be considered under section 104 of the RMA in relation to applications under that Act. However, there are limitations on the extent to which consent applications under this Bill may be declined (see clause 32).

Resource consents for referred projects

Clauses 29 and 30 set out the matters relevant for a panel’s consideration of a consent application and comments received on it in relation to a referred project. The test prescribed is, as far as is relevant, the same as that in the RMA (see sections 104 to 104D, 105 to 107, and 107F of that Act).

Requirements for designations for listed and referred projects

Clause 31 sets out the matters relevant for a panel’s consideration of notices of requirement for both listed and referred projects.

Clause 32 sets out the limited grounds on which resource consents and designations may be declined for listed projects.

Conditions

Clause 33 provides for the application of sections 108, 108A to 112, and 220 of the RMA to the granting of resource consents under the Bill.

Clause 34 requires a panel to provide a copy of its draft conditions to the specified persons before it issues its final decision, giving those persons an opportunity to provide comments on the proposed conditions.

Final decision

Clause 35 provides that a panel’s final decision must be reported not later than 25 working days after the date that comments were to be received on the consent application or notice of requirement under clause 18. There is a power to extend that reporting date by up to a further 25 working days if, because of the scale of the project, the panel could not complete its decision within the time specified. The clause prescribes the contents of the report and the date on which the consent or designation lapses if not given effect to (which must not be later than 2 years after the date specified for the consent to commence or after a designation is included in a district plan).

Clauses 36 to 38 provide for notice of a decision to be served on certain persons and published; they enable a decision to be issued in stages; and they specify who must be provided with information on the consent or designation.

Clause 39 requires the relevant territorial authority to include in its district plan a designation that has been confirmed as soon as practicable after any right of appeal has been exhausted or has expired.

Clause 40 provides that the territorial authority that would, but for the Bill, have been responsible for granting a resource consent or recommending a requirement for a designation has the powers, functions, and duties in relation to the resource consent or designation, as if the territorial authority had dealt with those matters itself.

Clause 41 provides that section 178(2) of the RMA applies to protect a notice of requirement from activities that would prevent or hinder the activity to which the notice of requirement relates.

Appeals

Clause 42 provides for a limited right of appeal on a question of law to specified persons against a decision of a panel on a resource consent application or notice of requirement for a designation. There is a second and final right of appeal to the Court of Appeal.

Clause 43 sets out the procedural requirements for appeals under the Bill.