Clause 6 provides that everyone performing functions and exercising powers under the legislation would need to act in a way that was consistent with the principles of the Treaty of Waitangi and Treaty settlements. We consider that this clause should replicate the Treaty of Waitangi provisions under section 8 of the RMA. That section requires everyone exercising functions and powers under the Act to take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). We recommend amending clause 6 accordingly.

Consequentially, we recommend deleting clauses 27(3)(b), 29(2)(b), and 31(6)(b) in Schedule 6. Those clauses would require the panel to apply section 6 of this legislation instead of section 8 of the RMA. Other consequential amendments would also be required to give effect to this change.

Clause 17 relates to how the Minister would have to satisfy their obligations under clause 6.

Clause 17(2) would require the Minister to obtain a report about an application from the Office for Māori Crown Relations—Te Arawhiti before referring any part of a project to a panel.

If the bill is enacted, the Ministry for the Environment will provide advice and recommendations to the Minister about whether projects should be referred to a panel. Given this role, we consider that it would be appropriate for the ministry to provide the report, in consultation with Te Arawhiti. We recommend amending clause 17 accordingly.

Clause 19 sets out the matters that the Minister could consider when determining whether a project would help achieve the purpose of the legislation. As introduced, the Minister could consider any or all of the matters.

To strengthen the Minister’s consideration, we recommend amending clause 19 to specify that the Minister “may have regard to the matters listed”. We also recommend deleting the reference to “any or all” to ensure that certain matters could not be ignored.

Under clause 19(e), the Minister could consider whether the project could have significant adverse environmental effects. We recommend amending this clause to include greenhouse gas emissions as an area that could be considered.

Clause 21 provides that the Minister would have to invite written comments from the relevant local authorities and relevant Ministers unless the Minister decided to decline the application. Under clause 21(4), anyone other than a Minister who was asked to provide written comments would have 10 working days from receiving the application to do so. We consider that the 10-day time frame should also apply to Ministers and we recommend amending clause 21(4) to this effect.

Clause 22 would enable the Minister to require further information about an application from the applicant or relevant local authorities. The Minister would specify a time frame in the request.

We recommend inserting clause 22(1A) to make it clear that the Minister would not be required to consider any information provided after the time frame. However, they could choose to do so provided they had not already made a decision about the application.

Clause 23 sets out the mandatory and discretionary reasons for when the Minister could decline a referral application. Clause 23(4) provides that, if the Minister had obtained a report or comments, they would have to consider them before declining an application.

We recommend amending this clause to specify that the Minister would also need to consider any further information that had been sought and provided within the required time frame.

Under clause 24(2)(b), the Minister could decide to refer the initial stages of a project to a panel while deferring decisions about the project’s remaining stages. We recommend amending clause 20(3) to require an application for referral to indicate whether the project was planned to proceed in stages. If it was, the nature and timing of the staging would also need to be indicated.

Clause 20(3)(k) would require an application to include a description of other legal authorisations that an applicant considers could be required to begin the project. The clause cites the Public Works Act 1981 as an example. However, we were advised that it is unclear whether taking land under the Public Works Act is considered an authorisation and whether processes under that Act would always be needed.

We consider that it would be more appropriate to replace the reference to this Act with “authorities under the Heritage New Zealand Pouhere Taonga Act 2014”. We recommend amending clause 20(3)(k) accordingly.

To address our proposed removal of the Public Works Act, we recommend inserting an additional requirement in clause 20(3). An application for referral would need to include a description of the applicant’s legal interest (if any) in the land on which the project will occur, including a statement of how that affects the applicant’s ability to undertake the work.

Clause 24(2)(a) would enable the Minister to refer all or part of a project to a panel if they were satisfied that the project met the referral criteria. We recommend inserting clause 24(3) to make it clear that the Minister could accept some parts of an application and decline others.

Clause 25(2) specifies the people that a Minister would have to inform if a project was referred to a panel. They would have to give notice of the decision and the reasons for it. We recommend amending this clause by adding the panel convener to the list of persons that would need to be notified. We consider that our proposed amendment would help the panel convener coordinate and undertake their functions efficiently.

Clause 1 of Schedule 5 states that the purpose of expert consenting panels is to ensure that decisions are made about certain applications. These are consent applications for listed and referred projects, and NORs for designations or to alter a designation for listed and referred projects.

We recommend amending this clause to make it clear that the panel could determine more than one consent application and NOR related to a project.

Clause 25 of Schedule 6 would enable a panel to issue a certificate of compliance for any activities relating to a listed or referred project. The application would need to be lodged as part of a consent application or NOR for the project. We recommend amending clause 1 of Schedule 5 to recognise that a panel could also issue a certificate of compliance in relation to a listed or referred project.

Clause 2(5) of Schedule 5 provides that the function of the panel convener would be to appoint members to determine a consent application or NOR for a listed or referred project. We recommend a consequential amendment to this clause to reflect that panels could also issue certificates of compliance.

We propose several amendments to clause 3 of Schedule 5, which relates to membership of panels.

Clause 3 specifies that a panel would need to include:

• one member of the relevant local authorities or a person nominated by those local authorities (clause 3(2)(a)); and

• one person nominated as the representative of the relevant iwi authorities (clause 3(2)(b)).

We recommend inserting clause 3(2A) in Schedule 5 to make it clear that the nominee would not have to be an elected council member.

Under clause 3(4) and 3(5), a panel convener would have to appoint a member from a local authority or iwi authority if the authorities did not nominate a panel member. We believe it would be inappropriate for the panel member to attempt to compel a panel appointment from an iwi authority or local authority. Therefore, we recommend amending clause 3 of Schedule 5 to require the panel convener to appoint a member with the appropriate skills and experience set out in clause 8(1).

Clause 3(1) specifies that up to four people could be appointed as members of a panel. However, clause 3(6)(c) provides that this number could be exceeded at the discretion of the panel convener due to the nature of the application being considered. We recommend amending this clause to include the scale of the project. This would reflect that a single project could involve numerous applications or NORs.

Clause 5 of Schedule 5 sets out the obligations of the panel convener or panel in relation to Treaty settlements. Clause 5(2)(b) would require the panel or convener to obtain the agreement of the relevant Treaty settlement entity to adopt a modified arrangement. We recommend amending clause 5(2)(b) to include joint management agreements and Mana Whakahono ā Rohe as these are included in clause 5(1), and to include iwi authorities as the agreement might be needed from an entity other than a Treaty settlement entity.

We also recommend several amendments to clause 5 to make it clearer that the clause relates to panel or hearing provisions.

We recommend deleting clause 6 of Schedule 5, which would require the panel convener to set the terms of reference for a panel. We consider that the role and function of the panel is clear and that terms of reference are not needed.

Clause 9 of Schedule 5 provides for the remuneration of the panel convener and panel members. We recommend amending this clause to specify that the legislation would apply as if the panel convener and members were members of a statutory board. This would be within the meaning of the Fees and Travelling Allowances Act 1951.

Clause 11(1) of Schedule 5 would enable a panel to regulate its own procedures in a way that best promoted the fair and timely determinations of applications. Clause 11(2) states that subclause (1) applies “subject to any other provision in this Act or regulations made under this Act that regulate the procedures of a panel”.

The Regulations Review Committee queried the inclusion of the words “regulations made under this Act” because the bill does not provide for any regulation-making power. We understand that there is no intention to include any regulation-making powers. Therefore, we recommend deleting the words “regulations made under this Act”.

Clause 11(4) of Schedule 5 would enable a panel to obtain reports and appoint technical advisors as it considered appropriate. We recommend deleting the reference to “obtain reports” as it duplicates clause 24(1)(b) of Schedule 6 (further information requests). That clause would also let the panel commission reports.

Clause 12(1) of Schedule 5 would require the Environmental Protection Authority (EPA) to provide advice and secretariat support for a panel. We understand that it is also intended that the EPA would support the panel convener to appoint panel members and chairpersons of panels. We recommend amending clause 12(1) to provide that the EPA would also support the panel convener in the functions outlined in clause 2(5) of Schedule 5.

Clause 14(2) would enable the EPA to recover from an applicant the actual and reasonable costs that the EPA or panel incurred in exercising its functions and powers under Schedules 5 and 6.

Under clause 12(2) of Schedule 5, a local authority would have to provide advice to a panel if the panel requested it. We consider that the local authority should be able to recover their costs for providing this advice. We recommend inserting clause 14A(3) in Schedule 5 to enable this.

We recommend amending clause 14 to enable the EPA to recover certain costs from the applicant on behalf of the local authority. These would be the costs incurred in gathering information from the local authority (clause 7 of Schedule 6) and advising the panel (clause 12 of Schedule 5).

We recommend inserting clause 14(3A) to specify the fees criteria that the EPA would have to consider when recovering costs. Our proposed insertion would be similar to section 149ZD(6) of the RMA, which relates to boards of inquiry.

Under clause 9 of Schedule 5, panel members would be entitled to receive remuneration from and at a rate determined by the Minister in accordance with the fees framework. The Minister would therefore be able to recover costs incurred by panels when they are exercising their functions and powers under this legislation. This would mirror the cost recovery provisions for boards of inquiry under the RMA. We recommend inserting clause 14A to enable the Minister to recover the actual and reasonable costs incurred. The Minister would need to provide an estimate of the likely costs to be recovered if requested by the applicant.

We recommend inserting clause 14B to enable the Minister to delegate this proposed ability to the EPA. We consider that this is appropriate given that the EPA will support panels in their duties and functions. This is also similar to what is currently provided for under the RMA.

Clause 2(3) of Schedule 6 would require a consent application or a NOR to be lodged with the EPA and be made in the approved form and manner. However, given the bespoke information requirements that are set out in the bill, the RMA forms would not apply. Also, the bill does not provide for forms to be made.

To address this, we recommend inserting clause 2(4A) in Schedule 6 to empower the EPA to approve a form for consent applications and NORs.

We recommend replacing the references to “fee” with “costs recoverable by the EPA” in clause 6(2) and 6(3) of Schedule 6. The bill would not enable the EPA to charge a fee but it could recover costs.

Clause 7 of Schedule 6 would enable the EPA to request information about a proposed project site from the relevant local authority. It could also set a date when the information must be made available. The EPA would need to consider that the information was necessary and relevant to a consent application or NOR.

We consider that information should be provided in a way that does not prevent or slow down the processing of an application. We recommend amending clause 7 to provide that if a local authority cannot provide the information by the date requested by the EPA, it would need to make the information available as soon as practicable.

Under clause 3 of Schedule 6, the EPA would have five working days to assess whether an application was complete. We note that this does not give it much time to obtain information from the local authority. We recommend amending clause 7 of Schedule 6 to enable the EPA to request information from a local authority about a listed or referred project before receiving a consent application, certificate of compliance, or NOR.

Clause 8 of Schedule 6 would enable the EPA to make administrative decisions when directed by the chairperson of a panel. To prevent unnecessary delay, we believe that the EPA should be empowered to make administrative decisions without needing a direction from the chairperson. We recommend an amendment to clause 8(1) to this effect and a consequential amendment to clause 8(2).

Clauses 9 to 13 of Schedule 6 set out the information required for consent applications and NORs for listed and referred projects.

Clauses 9(5) (consent applications) and 13(1)(j) (NORs) require the relevant iwi or hapū to prepare a cultural impact assessment. If they did not wish to do so, the application or notice should include a statement of the reasons given for the refusal.

We propose several amendments to both of these clauses. For consistency with the rest of the bill, we recommend replacing “relevant iwi or hapū” with the defined term “relevant iwi authority”.

We also recommend inserting a provision that would enable a cultural impact assessment on behalf the relevant iwi authority. This would make it clear that the iwi authority could delegate the assessment to a hapū or other group.

Clause 17 of Schedule 6 would prohibit a panel from giving public notice or limited notification of a consent application or NOR. However, subclauses (4) to (7) list the people and groups that the panel would have to invite comments from for listed and referred projects. They include owners and occupiers of the land on which the project would be undertaken and the adjacent land.

We note that it may not be possible for a panel to obtain the contact details of all relevant occupiers of land to which the project relates, and adjacent land. To address this, we recommend inserting clause 17(4)(fa). This would specify that a panel would only need to invite comments from persons who, after reasonable inquiry, were known to be occupiers of land subject to, and adjacent to, the land to which the application or NOR related.

Under clause 9(1)(d), an applicant for resource consent would only have to provide the name and address of the owners and occupiers of the site to which the project relates. They would have to make reasonable inquiries to do so.

To help the panel with contacting the owners and occupiers of adjacent land, we recommend amending clause 9(1)(d) to require the applicant to identify them. We consider that applicants should have to identify owners of the site and adjacent land rather than merely making reasonable inquiries to identify them. This is because ratings databases include information about property owners.

As introduced, the bill does not contain an equivalent provision in clause 13 (Information required for notices of requirement). This means that a requiring authority would not have to include information about the owners and occupiers of land to which the designation relates.

We recommend inserting a requirement in clause 13(1), similar to the one in clause 9(1). The requiring authority would need to include the contact details of every person who it knows to own or occupy the land to which the designation relates. This would also apply to owners or occupiers of adjacent land. The reasonable inquiry provisions would only apply to occupiers of land or adjacent land.

Clause 31 of Schedule 6 would require a panel considering a notice of requirement to have regard to any of the relevant provisions of the documents listed in clause 31(3). However, under clause 13, the requiring authority would not need to provide an assessment against these documents to support its NOR. We recommend inserting a requirement into clause 13 so that it must do so.

Clause 18 of Schedule 6 sets out some general requirements for invitations to comment issued by a panel under clause 17(2) and for the responses provided to the EPA.

We propose several amendments to simplify and clarify these processes. We recommend amending clause 18 to specify that any comments that the EPA receives about an application or NOR should be forwarded to the consent applicant or requiring authority.

We also recommend inserting clause 18A to enable the consent applicant or requiring authority to provide the panel with a written response to comments received about an application. The response would need to be within 5 working days of the comments being due to the panel. We believe that this would help the panel understand how any conditions or changes that a person has commented on would affect the project. It would also help the panel make its decision.

Clause 18(3)(a) would allow an iwi authority invited to provide comments to share the application with hapū whose rohe was in the project area proposed in the application. We recommend amending this clause to make it clear that this would apply to a consent application and a NOR.

Clause 20 of Schedule 6 describes the procedure to be adopted if a panel decided to hold a hearing. The panel could choose to hear from any of the following:

• the applicant

• any person who the panel commissioned to write a report about the application or NOR

• any person or group that provided comments in response to an invitation to comment.

We believe that if the panel decided to hear from any person or group that provided comments then the applicant should also be given the opportunity to be heard in response. To reflect this, we recommend inserting clause 20(1A).

Clause 21 of Schedule 6 would enable the Minister to direct a panel to suspend processing a consent application or NOR. The Minister would need to consider that further resource consents were necessary for the proposal. We note that there could be a timing issue if the Minister suspended processing and the applicant subsequently lodged the further consents necessary. It could then take some time for the new consents to reach the same stage in the process as the initial consents. We recommend amending clause 21 to provide a mechanism that would ensure that all applications were at the same stage of the process before a panel proceeded to a decision.

Clause 22 of Schedule 6 would allow an applicant to request that the panel suspend processing an application. As introduced, the panel could accept or decline the request. We recommend amending clause 22 to specify a situation when a panel would have to accept such a request. This would be when an applicant requested a suspension to negotiate a pre-request aquaculture agreement under section 186ZM of the Fisheries Act 1996. Our proposed amendment would reflect the same obligation under section 88F of the RMA.

Under section 88F of the RMA, a consent can only be suspended to negotiate a pre-request aquaculture agreement for a maximum of 80 working days. Clause 23 of the bill provides that an application could only be suspended for 50 working days. Given that the aim of the bill is to fast-track consenting processes, we recommend that the 50 working day limit should also apply to these suspended applications. We recommend amending clause 23 accordingly.

Clause 23 provides that, if the processing of a consent application or NOR was suspended, the application or NOR could be returned to the applicant in certain circumstances. We recommend deleting clause 23(1)(b), which sets out that clause 23 would apply if a suspension was granted. We consider that this provision is unnecessary.

Clause 24 of Schedule 6 would enable the panel to direct the EPA to obtain further information before issuing its final decision. Under clause 24(2), the consent applicant or requiring authority would need to provide electronic copies of the information requested no later than 10 working days after the direction. If they declined to provide the information, they would need to advise the EPA of their reasons for doing so.

We note that it may be necessary for a panel to require information to be provided sooner given the deadline for the panel to make its decision. We recommend amending clause 24(2), which would enable the panel to set the due date for a response to a further request for information. To achieve the bill’s aim of fast-tracking consenting, we recommend that the due date be no later than 10 working days after the request.

We recommend that the time frames in our proposed amendment to clause 24(2) should also apply to clause 24(1)(a). As introduced, clause 24(1)(a) contains no deadlines for a local authority or other person to provide further information requested by the panel.

We recommend inserting a provision as clause 24(5) to clarify the process if a person did not provide further information by the due date and did not give reasons for doing so. Under our proposed amendment, the panel would assume that the request had been declined.

Clause 24(1)(b) would enable the panel to direct the EPA to prepare or commission an expert report on an issue relevant to the consent application or NOR. To ensure that the panel would not be constrained, we recommend amending this clause to remove the reference to “expert”. We also recommend an amendment to make it clear that a panel could commission a report from the relevant local authority.

Clause 25 of Schedule 6 would enable a consent applicant or requiring authority to apply for a certificate of compliance under section 139 of the RMA. This would be as part of its consent application or NOR.

We consider that the wording “as part of” in clause 25 is unclear. This is because an application for a certificate of compliance would not always form part of a consent application or NOR. We recommend amending clause 25 to make it clear that an application for a certificate of compliance would need to be made at the same time as a consent application or NOR.

Clauses 29 and 30 of Schedule 6 set out the matters relevant for a panel’s consideration of a consent application (and any comments received) for a referred project.

Under clause 29(7), a panel could grant a resource consent on the basis that the activity was a controlled, restricted discretionary, or non-complying activity. For consistency with the RMA, we recommend amending this clause to include reference to a discretionary activity.

Clause 30(1) specifies that a panel would need to apply sections 104A to 104D, 105 to 107, and 107F of the RMA when considering an application. We note that section 107F relates solely to procedural matters. We consider that it would be more appropriately placed as a new clause 24A of Schedule 6, alongside other clauses that deal with such matters. We recommend an amendment to this effect.

We also recommend amending the relocated clause 30(2) to clarify that references to “submissions” and “if the application is notified” in section 107F(3)(c) of the RMA would need to be read as references to comments provided in response to an invitation given under clause 17(2) of Schedule 6 of the bill.

Section 138A(1), (2), (5), and (6) of the RMA specify the matters that apply when a consent authority is considering a resource consent to contravene section 15A(1) of the Act. This section relates to dumping or incinerating waste in the coastal marine area. We recommend amending clause 30(1) to make it clear that section 138A(1), (2), (5), and (6) of the RMA would apply to the panel’s consideration of a resource consent.

Clause 31 of Schedule 6 sets out the matters relevant for a panel’s consideration of notices of requirement for designations on listed and referred projects. Clause 32 specifies the limited grounds on which a panel could cancel a NOR for a designation on a listed project. This would not apply to referred projects.

We recommend amending clause 31 to clarify the relationship between clauses 31 and 32. Our proposed amendment would provide that the matters in clause 31(1) to (4) would relate only to the panel’s decision to modify or impose conditions on a notice of requirement.

As noted, clause 32 of Schedule 6 contains limited grounds under which a panel could decline a resource consent or cancel a NOR for a designation on a listed project.

We also recommend amending clause 32 to make it clear that the panel could only decline consent or cancel a NOR on the grounds listed in clause 32(1). If these grounds were not satisfied, the panel would have to grant the consent or confirm or modify the NOR.

Before a panel issued a decision granting a resource consent or designation, they would need to provide a copy of the draft conditions under clause 34 of Schedule 6. They would need to invite comments on the draft conditions from the consent applicant or requiring authority and every person or group that provided comments in response to an invitation.

We recommend amending clause 34 to require the panel to set a deadline for comments on the draft conditions. The panel would have the discretion to set the deadline and would not be required to consider any comments that were provided after the deadline. This would enable it to complete its decision within the time frame specified in clause 35.

Sections 123 and 123A of the RMA set the maximum duration for the different types of consent. We recommend inserting clause 34(2A) to make it clear that sections 123 and 123A of the Act would also apply to the duration of any consents that a panel granted.

Clause 35(2) of Schedule 6 specifies when the panel would have to issue its final decision about consent applications and NORs. This would have to be no later than 25 working days after the date specified for receiving comments under clause 18. However, clause 35(3) would enable the panel to extend the reporting date by a maximum of 25 working days. The panel would have to be unable to make a decision within the specified time due to the scale of the project.

Clause 24(2)(f) would enable the Minister to set specific time frames in a referral order for the panel to process a resource consent or NOR. This clause would apply only to referred projects and the time frames could differ from those specified in clause 35 of Schedule 6.

We note that clause 35 of Schedule 6 contains a number of different time frames, making it unclear which ones a referral order could modify under clause 24(2)(f). We recommend amending clause 35 to make it clear that a referral order could only modify the references to “25 working days” in clause 35(2) and (3).

Clause 35(4) states that the time periods allowed under subclauses (2) or (3) do not include any time that a consent application or notice of requirement was suspended under clause 22.⁶ We recommend amending clause 35(4) to also exclude any time that processing of an application was suspended at the direction of the Minister under clause 21.

Clause 35(7) and (8) provide that a panel’s decision would need to specify the date on which a resource consent or NOR for a designation lapsed if not given effect to. Panels could not set a lapse date that was longer than 2 years. This would be measured from the date a resource consent commenced or the date the designation was included in a district plan. We recommend amending clause 35 to clarify that a resource consent granted by a panel would commence on the date that all appeals were determined.

Clause 36 of Schedule 6 specifies that notices of decisions would have to be served on certain persons and be published. We recommend amending this clause to provide that section 114(4) of the RMA would also apply to the panel.⁷ Our proposed amendment would require the panel to provide a copy of the decision to the Director-General of the Ministry for Primary Industries. This would enable the ministry to perform its functions under the Fisheries Act 1996.

Clause 38 of Schedule 6 would require the EPA to provide information to certain persons about the resource consents granted and the confirmed designations. This would apply after all appeal rights were exhausted or had expired. However, the people specified in clause 38 would already have been served a notice of a panel’s decision under clause 36. The notice would have to include advice about when an appeal could be lodged.

We consider that clause 38 would cause unnecessary duplication, particularly given that all appeal rights would have been exhausted or expired. Therefore, we recommend deleting clause 38.

Clause 37(2) of Schedule 6 would enable a panel to correct minor omissions, errors, or other defects in its decision. The corrections are intended to be to the conditions that the panel imposes on a resource consent or notice of requirement. We recommend moving clause 37(2) to a new clause 38 to make this clear. Our proposed amendment would be similar to the provisions in section 149RA(1), (2), and (4) of the RMA. That section relates to a board of inquiry being able to make minor corrections to board decisions.

Under clause 39(2) of Schedule 6, the relevant territorial authority would have to include a designation that has been confirmed in its district plan. This would need to be as soon as practicable after any right of appeal was exhausted or had expired. We recommend amending this clause to make it consistent with section 175(2) of the RMA.

Clause 35 would require local authorities to monitor activities that were permitted activities under Part 2, subpart 2. We recommend amending this clause by replacing “must” with “may”. This would allow local authorities to use their discretion to monitor activities, as they can under the RMA.

Clause 8 of Schedule 4 would require an agency to serve a notice of intention on certain groups before it undertakes any work. They are iwi, hapū, and Treaty settlement entities. Under clause 8(3)(e), the notice would need to include a copy of any accidental discovery protocol to be applied during any earthworks activities. This protocol is required under clause 12(3)(b) of Schedule 4.

We recommend amending clause 8(3) of Schedule 4 to include reference to whether an archaeological authority is required or has been applied for in addition to the requirement for an accidental discovery protocol.

Subclause 4 of clause 29 of the bill (Criteria for work on infrastructure) specifies the land where the works on infrastructure would need to be located. Because the location requirements would be different for agencies added later, we recommend moving this provision (and the related definitions in clause 7) to clause 10A of Schedule 4, which deals with permitted activities for the specific agencies.

Clause 11(1)(a) provides that the permitted activities for KiwiRail and the NZTA would need to be on infrastructure located in or on the national road corridor on the national rail corridor.

We recognise that agencies may not have a legal interest in the land where work could be undertaken. We therefore recommend extending where work could be undertaken so that it could be:

• on land owned by the agency or where they had a legal interest authorising access and use of the land for the works

• on land where there is a compensation certificate pursuant to section 19 of the Public Works Act recording the acquisition of the land for the works

• in the bed of river and within the coastal marine area, but only to the extent necessary for the work on infrastructure.

Subpart 2 of Part 2 of Schedule 4 sets out performance standards that would be specific to NZTA and KiwiRail when undertaking permitted works on infrastructure.

Clauses 12 to 14 set out rules for ground disturbance. We recommend several amendments to these clauses to align with best practice for performance standards.

We also recommend deleting clause 12(6)(c), which sets a limit on the changes earthworks could make to a natural wetland’s median annual water level. We heard that this would be difficult to determine without several years of water level information on a specific wetland, which is unlikely to exist.

Under clause 33 of Schedule 4, any change to the area occupied by an existing structure or reclamation or drainage system in the coastal marine area would need to be as small as practicable. It could also have no additional effects on coastal processes. We recommend amending this clause to specify that the effects should be “no more than minor adverse effects”. This wording is consistent with the existing test in the RMA.

Clause 36 of Schedule 4 provides that the agency undertaking the works would have to provide evidence of compliance with the relevant standards on completion of the works. We recommend amending clause 36 to ensure that the plans outlined in the performance standards have to be kept by the agency, but need to be provided to the consent authority only if requested. Our proposed amendment would also help local authorities with their monitoring responsibilities required under the legislation.

Schedule 1 contains transitional, savings, and related provisions. The provisions would allow the repealed legislation and any revoked Order in Council made under the legislation to continue in force. This would only be for the purposes of completing any matter that had already been started.

We note that the legislation would self-repeal after two years and that a referral order could be made any time before the repeal.

We consider that two years is an appropriate time frame. It would enable the Minister to make referral decisions, meet the overall intent of the legislation, and ensure that enough eligible projects would be fast-tracked to support economic recovery. To better reflect this intent, we recommend the following amendments to clause 1 of Schedule 1:

• Certificates of compliance issued by panels would continue to have effect after the repeal of the legislation.

• Panels could be convened to consider referred or listed projects. The application for the resource consent or NOR would need to be lodged with the EPA within six months of the date that the legislation was repealed.

• Filing, hearing, determining, or withdrawing an appeal or a judicial review in relation to decisions made by the panel would also apply after the repeal of the legislation.

• The role of panel convener could continue after the repeal of the legislation. Panels would still be needed to determine any consent applications, NORs, and certificates of compliance after the repeal of the legislation.

• Cost recovery could continue after the repeal of the legislation.

Clause 2 of Schedule 1 provides for permitted activities (work on infrastructure) to continue as permitted activities for 15 years after the legislation was repealed. For the legislation to continue to apply to works after its repeal, clause 1(5) of Schedule 1 specifies that a notice of intention would have to be submitted to a relevant local authority. The works would need to have started before the legislation was repealed.

We recommend moving the provisions in clause 1(5) of Schedule 1 to clause 2 of Schedule 2. This would provide a clearer link between the notice of intention referred to in clause 1(5) and the permitted activities in clause 2.

We recommend several other amendments, which would clarify that:

• the 15-year time limit would only apply to those permitted activities that could otherwise have a time-limited resource consent from a regional council

• once the 15-year limit was completed, the relevant regional plan requirements would apply

• permitted activities that could otherwise have an indefinite resource consent from a district council could continue indefinitely.

We also recommend clarifying that the activities would no longer be permitted if they changed in character, intensity, or scale after the legislation was repealed.

Clause 4 of Schedule 1 would authorise the EPA to continue to exercise or perform its powers, functions, and duties under the legislation. This would be for the purposes of recovering costs, providing secretariat services or advice, or completing any other matter under the legislation. We recommend inserting clause 4A to insert a similar provision for local authorities and iwi authorities.