First published in New Zealand Herald, 3 June 2009.
The fact that it can take longer to get resource consents for large infrastructure projects than it does to build them will not come as any surprise to most New Zealanders. What might be less well-known is that we've had the tools to fast track for some time but they've remained largely unused in the box.
Changes are ahead, however, which signal new impetus and steps to relieving the frustration in delivering critical infrastructure projects. They should go some way to reducing the kind of delays that could have seen motorists using Wellington's inner city bypass and north Auckland's Puhoi motorway extension years earlier had it not been for lengthy hearings and appeals.
The Resource Management Act has often been the bull's eye for pot shots against process since it became law 18 years ago. The hold-ups in getting large infrastructure projects off the ground come at significant cost to the New Zealand economy. They create uncertainty for the public and investors, including affected communities. The costs and time lost also have the potential to derail projects of national importance.
The government's proposals to reform the RMA - to streamline and simplify the process including fast-tracking infrastructure development – are an important step to speed the process but they will not be an overnight panacea.
No sides of the political spectrum promote wholesale changes to the RMA or seek to replicate the break-neck speed of developments in places such as China or the Middle East, where there are numerous examples of disregard for local communities and the environment. The aim is to achieve balance – preserving democracy and sustaining environments without undue delay or economic cost. That will always remain a complex and subjective challenge. The RMA reforms will assist us as a nation to make sure red tape does not bind unduly either proponents or opponents of critical infrastructure.
Fast-tracking mechanisms include changes to what is known as the "call-in" process. Since the RMA was introduced in 1991, the Minister for the Environment has had the power to "call in" a project from the usual council consenting process where it is in the national interest to do so. The reforms extend the criteria to take into account projects that may on their own not appear nationally significant but which may be part of a larger network of roading or electricity supply, for example. They also create a new Environmental Protection Agency (EPA) aimed at faster and more efficient processing of nationally significant proposals. The EPA will have to make a recommendation to the Minister within 10 days of receiving an application as to whether it should be called-in or referred back to the local authority.
If the project is called-in the Minister refers it to a Board of Inquiry – a panel including a current or past Environment Court judge and other expert and local representatives, or directly to the Environment Court – to grant or decline consent. Under the new system, a decision is supposed to be made within nine months, although there is a provision for an 18-month extension period. Call-ins are a one-stage process – and under the revised plans, scope for any appeals is even tighter.
Surprisingly in the last 18 years, only five projects have been called in – all electricity generation or transmission projects. The scorecard to date is two consents granted, one declined, one adjourned for a year for further information to be collected and one to be heard. This small number of call-ins to date shows a reluctance by applicants, officials and politicians to pursue this process. In part, the EPA is aimed at reducing the lack of enthusiasm to fast track in future.
In comparison across the Tasman in New South Wales, under a similar but more comprehensive major projects assessment scheme, latest figures show the State Government made decisions on 296 projects in the 2007-08 year. Even taking into account they've 2.7 million more people in NSW than New Zealand, it does make our tally of five projects seem slim.
While the call-in process can and should result in faster processing of applications, we should not be under any illusions that it's an easy fix or the only answer. Careful consideration needs to be given before an applicant decides to pursue the call-in path. There are potential pitfalls, particularly around the degree of information required and key stakeholder alignment that needs to be in place from the start. All the ducks must be in a row if you are to take a major development on the one stage 'drop dead' call-in path. Like all litigation, RMA outcomes are uncertain. Having a matter called-in won't change that.
There are examples where, in the absence of an appeal hearing, it has been straightforward to get consent for large infrastructure through the regular consenting process. Along the standard track, potential road blocks can be identified and dealt with during or before the council hearing process. Should any decision be appealed the issues are refined, and at the very least an applicant is properly forewarned and able to respond to the issues raised by an opponent.
While we are yet to see the detail of the EPA, expected to be in place by July next year, there are potential issues that will be critical to its role in speeding things up. Among them will be resourcing to ensure the agency has both the expertise and the people power required to deal with complex projects within tight timeframes. If the EPA receives more applications than it can deal with or is not properly resourced the fast track could become a bottleneck.
That said, it should be pleasing to all involved in the resource management process – and directly or indirectly that's all of us – that we are progressing and debating measures to make sure our critical infrastructure is not a bunch of papers buried in a box tied with a red ribbon. Our economy hasn't got that long to wait anymore.
Andrew Beatson is an expert in resource management issues, in practice as a partner with law firm Bell Gully. He will be speaking at the Environmental Defence Society's Reform in Paradise conference in Auckland, 8-9 June.