It is an indisputable fact that infrastructure is a public good; its provision and maintenance contributes significantly to the ongoing economic and social well-being of New Zealand. Equally, an approach to urban planning which seeks to align the provision of infrastructure and future development is unquestionably correct.
Long the focus of seemingly ubiquitous criticism, the Resource Management Act 1991 (RMA) provides the regulatory framework for the provision of new infrastructure. Despite universal recognition of the national significance of infrastructure in subordinate planning documents (regional policy statements and district plans), a common refrain of infrastructure providers is that the RMA processes for obtaining approval for new projects are time-consuming, expensive and uncertain.
This article examines implications for the provision of infrastructure arising from the recent enactment of the Covid-19 Recovery (Fast-track Consenting) Act 2020 and the release of the National Policy Statement on Urban Development (NPSUD). In addition, brief reference is made to recommendations contained within the Randerson Report on the proposed reform of the RMA as they relate to mechanisms for approving infrastructure projects.
The Covid-19 Act
The Covid-19 Recovery (Fast-track Consenting) Act 2020, or Covid-19 Act, is a short-term (two-year) measure enacted by the Government in July 2020 with the specific purpose of providing an alternative, more efficient and certain consenting pathway for projects that can boost employment and aid economic recovery.
As legislation goes, it is certainly not without recent precedent, with a number of its features paralleling provisions of legislation enacted to promote rebuilding and recovery in the aftermath of the Canterbury and Kaikoura earthquakes. The principal feature of the act is the adoption of a fast-track consenting process for both ‘listed’ and ‘referred’ projects.
There are 17 ‘listed’ projects in Schedule 2 of the act, including projects that are the responsibility of key infrastructure providers such as Waka Kotahi New Zealand Transport Agency (NZTA), Transpower New Zealand and KiwiRail Holdings Ltd (KiwiRail).
‘Referred’ projects, on the other hand, can only take advantage of the new fast-track consenting process if approved by the Minister for the Environment. Anyone can lodge an application with the minister to refer a project. In deciding whether to approve or decline such an application, the minister may have regard to a range of specified eligibility criteria, including the project’s economic benefits and costs, and whether or not the project will generate employment or increase the supply of housing.
Decisions on applications for listed and referred projects are to be made by specially constituted expert consenting panels, to be chaired by a judge or retired judge. Comparatively speaking, the process for considering an application is significantly more streamlined than the present RMA process. In particular, steps such as notification of applications is precluded, as are appeals on merit to the Environment Court.
Furthermore, for listed projects a panel can only decline approval on very limited grounds, these being inconsistency with either a national policy statement or the Treaty of Waitangi. There is less certainty of outcome for referred projects, with the range of matters the expert panel is required to take into account paralleling the current provisions of the RMA.
Another feature of the Covid-19 Act is the direct enabling of certain work on existing infrastructure that is carried out by a range of agencies, including KiwiRail, NZTA and all local authorities. For example, it is a permitted activity for KiwiRail and NZTA to undertake any work for the operation, maintenance, replacement, or minor upgrade of existing infrastructure, subject to meeting listed performance standards.
Overall, the Covid-19 Act recognises and reinforces the importance of infrastructure and the benefits in providing increased certainty of outcome for projects that will assist with economic recovery. This is particularly the case for listed projects which essentially must be approved.
It remains to be seen whether or not there will be a significant uptake under the act for the referral process, bearing in mind that the minister will undoubtedly be careful to ensure that expert consenting panels are not overloaded with applications that should more properly be processed in the usual RMA manner. Anecdotally, it is understood that no decisions will be made on applications for referral until after the upcoming general election.
National Policy Statement on Urban Development (NPSUD)
The negative effects of a constrained or inadequate supply of appropriately zoned land for urban development purposes are well documented, and include in particular the rise of housing unaffordability as a key issue. Within planning documents prepared under the RMA, land constraints typically restrict the ability to either expand beyond, or intensify within, existing urban boundaries.
To address these inefficiencies, the NPSUD directs local authorities to provide at least sufficient development capacity to meet expected demand for housing and business land in the short term (three years), medium term (three to 10 years) and long term (30 years). Development capacity provided must be plan-enabled and infrastructure-ready, the latter meaning that the infrastructure necessary to support development must either already exist or be identified in a local authority’s long-term plan or infrastructure strategy.
The NPSUD also mandates the development of Future Development Strategies (FDS) under the Local Government Act 2002. The purpose of an FDS is to promote long-term strategic planning to meet expected demand and to assist the integration of planning decisions under the RMA with infrastructure and funding decisions.
Accordingly, each FDS will likely have a very strong influence on the contents of planning documents prepared under the RMA. Broader spatial planning requirements aside, the NPSUD contains very firm directions to enable intensification within Auckland, Hamilton, Tauranga, Wellington and Christchurch (Tier 1 authorities). Policy 3 of the NPSUD provides that within city centres, Tier 1 authorities must enable building heights and density of urban form to realise as much development capacity as possible.
Building heights of at least six storeys must also be provided within at least a ‘walkable catchment’ of the edge of city centre and metropolitan centre zones and existing and planned rapid transit stops. Furthermore, the NPSUD requires territorial authorities to remove all minimum car park requirements from their district plans, the rationale being that car parking is land hungry and, as a consequence, is a barrier to intensification.
The influence of the NPSUD on urban growth and development is likely to be significant, requiring as it does that local authorities adopt a more real-world, evidence-based approach towards providing development capacity. Further, the directions to support intensification have the potential to result in profound changes to the form and functioning of New Zealand’s largest cities.
Somewhat ironically, given the emphasis elsewhere within the NPSUD on planning decisions aligning infrastructure and development, the directions to support intensification appear to have been made on an assumption or expectation that supporting infrastructure either can or will be provided by local authorities. Funding the necessary infrastructure to support intensification may well come to dominate the annual and long-term plans of local authorities.
The Randerson Report – recommendations on reform of the RMA
The recently released report ‘New Directions in Resource Management for New Zealand’ (the Randerson Report) is the first all-encompassing review of our resource management system since the enactment of the RMA in 1991, and was conducted by an independent resource management review panel chaired by retired Court of Appeal Judge Tony Randerson QC. The report contains a series of recommendations on reform, the most fundamental being the replacement of the RMA with a National Development and Built Environments Act and a Spatial Planning Act, the latter echoing the NPSUD’s approach to planning for urban growth.
The Randerson Report also scrutinises the consenting and approval processes for development, including those provisions of the RMA relevant to the delivery of infrastructure.
In very brief summary, infrastructure is delivered primarily through designations initiated by requiring authorities (ministers of the Crown, local authorities and network utility providers). The first step in the designation process is the lodging of a ‘notice of requirement’ for a designation with the relevant local authority.
Notices of requirement are subject to an approval process similar in most respects to resource consent applications, and are regularly notified to enable full public scrutiny. If a designation is forthcoming, approval is typically for a default period of five years, within which a further step is required, being the lodgement of an outline plan of works including full construction-ready details of the project.
Broadly speaking, the review panel does not recommend a major overhaul of the designation process, rather it is more a case of fine-tuning. For example, the panel recommends that the default lapse period for designations be doubled to 10 years to more closely reflect planning and funding cycles.
In addition, the panel recommends that the initial notice of requirement approval stage in the designation process be simplified in terms of matters to be addressed, the corollary being that greater detail of the operational effects associated with a designated project be included within a construction and implementation plan.
The rationale behind this suggested change is that often the requiring authority will not have completed the final design of a project until shortly before construction. Locking in a design at the initial approval stage is therefore regarded by infrastructure providers as restricting design options and potentially losing innovation and better environmental outcomes.
While in principle there is merit in requiring authorities having the ability to obtain a ‘high-level’ or conceptual designation, there is a fine line in prescribing the level of detail necessary to inform a decision on the appropriateness of a project from the outset. At present, there is insufficient detail in the Randerson Report to provide informed comment as to where that line should be drawn, that detail being left to the drafters of the replacement legislation when the time comes. Given the political will for reform of the RMA, this is expected to be within the term of the next Government.
If you have any queries about this article or other resource management issues, please get in touch.
Partner Gerard Cleary heads the resource management team at law firm Anthony Harper; his experience and expertise covers all aspects of development under the RMA; for further information, visit www.anthonyharper.co.nz