By Paul Buetow and Brigid McDonald, Kensington Swan Lawyers
Securing resource consents and designations for key infrastructure projects creates headaches for most operators. This is largely due to the delays and costs associated with the public participation elements of the consenting process – drawn out through public notification and appeals.
While the Resource Management Act (RMA) is integral to major infrastructure projects, it has become increasingly entwined in its own red tape. The growing complexity, delay and cost of the requisite planning and consenting processes can now constrain its intended sustainable management purpose.
For projects of national significance greater use needs to be made of the call-in and other processes provided by the RMA. The call-in process would streamline consenting for key projects while still allowing for adequate environmental assessment and monitoring.
Alternatively, New Zealand needs to follow the lead taken by countries such as Ireland and Australia in consenting.
Resource management processes
The RMA is the umbrella legislation governing the use of New Zealand’s natural and physical resources. Local authorities implement the RMA through their respective policy statements and plans that control development through policies and rules.
Most significant infrastructure projects will require resource consents from at least one local authority. Delays and costs are usually due to the level of assessment an applicant for consent needs to supply to the local authority, public input and appeals to higher levels of authority (e.g. Environment Court).
Designations are another device available under the RMA. Through that process, a requiring authority (such as Transit) notifies its interest in land and goes through the process set out in the RMA to have a designation applied over a particular area of land. The designation outlines the intended land/resource use (effectively overriding the district plan restrictions of the underlying land zoning), and simply requires the requiring authority to lodge a plan of the intended works with the relevant territorial authority for approval before work is undertaken in accordance with the designation.
However, for contentious projects for which there is no (or an inadequate) designation or that trigger the need for resource consents, the RMA’s call-in processes may be more effective.
The 2005 amendments to the RMA make the streamlining tools more ‘user friendly’ and practically effective.
Call-in
Call-in is shorthand for the government’s ability to intervene in and effectively streamline the consenting process for projects of national significance.
Call-in processes have always been in the RMA toolkit but have been largely unused. Prior to the 2005 RMA amendments, the Minister for the Environment could call in an application for a resource consent that was nationally significant. The RMA required the Minister to appoint a board of inquiry to hold a hearing and the board would then make recommendations to the minister. The minister, rather than the relevant local authority, determined the application.
There appears to be only three examples of the call-in process in action. The first being the Taranaki Combined Cycle power station (1995), which involved an application for power station for burning natural gas. Simon Upton, the Minister for the Environment at the time, used the call-in powers and the proposal was the subject of a hearing before a board of inquiry and was followed by a ministerial ruling, approving the power station. More recently, proposals for Project Aqua (proposed damming of the Waitaki River) in 2004 and, just this year, the Transpower national grid upgrades have been called-in.
Post-2005, call-in remains an option if the minister considers the matter to be of ‘national significance’.
In addition, an applicant or local authority can now request that the minister intervene in a matter of national significance. The intervention power has been broadened to apply not only to resource consents but also to designations and private plan changes.
The minister can choose from a variety of options in these circumstances. The minister may call-in the matter for hearing by a board of inquiry (effectively eliminating hearings at local authority and Environment Court levels); make a submission on the matter for the Crown; appoint a project coordinator to advise the consent authority; direct that a joint hearing be held, if the matter involved one or more consent authorities; or appoint a hearings commissioner, if the consent authority itself appoints one or more hearings commissioners.
The Minister for the Environment (together with the Minister for Conservation in respect of coastal matters) still retains the gate keeping function in deciding whether a proposal is of national significance and which of the hearing options will apply.
An important change to the call-in process is that the board of inquiry now makes the final decision on the application, rather than the minister. The board must be chaired by a current, former or retired Environment Court judge. Unlike a council hearing, there are rights of cross-examination and the board is required to keep a full record of the proceedings. There are only limited rights of appeal from a board’s decision (only on questions of law); in other words, this eliminates appeals to the Environment Court where all issues can be re-litigated.
These changes should allow for projects of national significance to be dealt with more efficiently and effectively, saving participants in the process a considerable amount of time and money.
Intervention in roading projects
For major roading projects such as Auckland’s Western ring-route, Wellington’s Transmission Gully, and other major projects, such as those completed in recent years in Tauranga, and current upgrading in the Waikato region, use of the call-in process would have streamlined the consenting process. There is a strong argument that such projects are of national significance, particularly when having regard to time and money lost through traffic delays.
The Irish model
The delays and costs of consenting for major projects are not unique to New Zealand, but have been addressed differently by other countries.
In Ireland, the Environmental Protection Agency (EPA) is responsible for protecting and improving the environment. It licenses and controls large-scale waste and industrial activities, oversees local authority environmental protection responsibilities, and assesses the impact of proposed major developments on Ireland’s environment.
The Irish counties have individual responsibilities for the environmental services in their particular areas – these are primarily community services, certain waste and water services, and planning. If building or construction is required, an application is made to the local authority, with a right of appeal to An Board Pleanala (the Irish Planning Board). There are also appeal rights to the Irish courts, but only on procedural grounds.
Ireland has experienced considerable delay in major infrastructure projects due to the planning and consenting process. To overcome delays in obtaining approval, and to streamline the consent framework for infrastructure projects of public importance, the Irish Government enacted the Planning and Development (Strategic Infrastructure) Act 2006. That Act established a new strategic infrastructure division of An Board Pleanala, which provides a one-step consent process for energy, transport, waste and water projects. This allows projects to go straight to the planning board, rather than first having to get local authority approval, therefore reducing the length of time it takes to get development consent/planning permission.
The strategic infrastructure provisions of the Act came into effect on January 31, 2007. How effective the new legislation will be remains to be seen.
The New South Wales model
In New South Wales, planning reforms have been passed to improve the assessment of major projects (the Major Projects State Environmental Planning Policy (SEPP)). The purpose of the reforms, which were passed in 2005, is to remove unnecessary red tape and clarify the assessment of major or significant projects.
The NSW legislation also replaces approvals under eight acts with a single integrated assessment and approval process (New Zealand also has multiple pieces of legislation that need to be integrated, e.g. RMA, Land Transport Management Act, Local Government Act, Public Works Act, Historic Places Act, Reserves Act, etc, which can each separately hold up projects.
One of the major aims of the SEPP is to consolidate major projects under one instrument and make the minister the determining authority. In addition to major projects, the legislation provides the minister with the power to declare a project as ‘critical infrastructure’ if it is essential to the state for economic, environmental or social reasons. Special provisions apply in respect of such critical infrastructure.
There are two ways that a major project can be started in NSW. One is to lodge an application that contains detailed information about the project. Another is to submit a concept plan that provides a broader overview of what is proposed. Approval of the concept plan establishes the framework for a more detailed development of the proposal, which may include the need for further approvals. This has some similarities to the designation process under the RMA.
Regarding a project application, the applicant must prepare an environmental assessment of the proposal. NSW’s department of planning advises the applicant of key issues that must be addressed. State agencies, local authorities and other relevant authorities are consulted in developing these requirements. The applicant is also encouraged to consult with the community.
Once the applicant prepares the environmental assessment, it is checked to see that it addresses the necessary requirements and, if satisfactory, the department will arrange for it to go for public comment for a minimum of 30 days. The applicant can be required to respond in writing to any issues raised and outline any proposed changes to minimise its environmental impact. The matter then goes to the minister for consideration and a final decision.
The effect of the NSW reforms has been remarkable. For the period August 29, 2005 to June 30, 2006, the NSW department of planning made decisions on 225 major projects, totaling A$5.62 billion in capital investment, resulting in more than 15,000 new jobs being created. Furthermore, in 2005-06, the average assessment time for a major project to be determined was 70 days. And there is no sign of this slowing down.
So far in the first six months of this year, Minister for Planning Frank Sartor has determined and approved 75 major development proposals under the new laws.
Lessons for New Zealand
While the Irish reforms are still in their infancy and remain to be proven, the NSW experience can offer some useful lessons for planning processes in New Zealand. Rather than retaining a call-in process, NSW chose to consolidate major projects under one instrument, thereby providing certainty for proponents and the broader community in the consenting process. The key to the success of this approach is the well defined criteria applying to major projects set out in the State Environmental Planning Policy (Major Projects) 2005.
Unlike NSW, New Zealand does not have well defined criteria for determining what constitutes “national significance”. Under the RMA, this remains a matter interpretation by the minister. This creates risks of uncertainty, political inertia or bureaucracy that could defeat any gain in consenting time.
Not only will the criteria remain a matter of interpretation, but the question remains whether there is sufficient expertise at the central government level to handle such matters. In the case of both Ireland and New South Wales, by creating a centralised decision making body, these countries have been able to develop considerable expertise through permanent staff working in the infrastructure area. This leads to improved and timely decision making.
The current situation in New Zealand means that ad hoc boards and hearing panels must be convened if call-in powers are used. As a consequence, critical mass in expertise may not be achieved. Although there is no test case yet, there must be concerns over whether the level of efficiency and quality in decision-making achieved overseas can be replicated in New Zealand.
It remains to be seen whether the expanded powers under the 2005 amendments to the RMA will be used more often, and to what extent applicants and local authorities will request the minister intervene.
In its current form, the call-in process in New Zealand is a politicised process. Without sufficient political will, it seems that, despite the 2005 amendments, these processes will remain unused. Ultimately the use of call-in will be determined by the priorities and policies of the government, public and political pressures on the minister in relation to particular projects, and whether the government wants to take on the responsibilities and costs associated with the particular call-in.
Contractor Vol.31 No.9 October 2007
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