The Inside Track?

 

The Fast Track Approvals Bill (or is that the “Inside Track Approvals  Bill”?)  is currently before a select committee who are hearing submissions on the Bill. There is much focus on the powers to be given to select Ministers to approve projects accepted under the Bill.

 At a more techincal,  planning level, an interesting feature of this bill is the weighting to be given to various aspects in decision making. Some form of weighting of the importance of various matters in decision making is generally seen to be a good thing. But how do you set weights/importance when trying to enable development while managing environmental impacts?

Part 2 of the BIll  covers the assessment of consent applications and notices of requirement by an expert panel. The expert panel must give weight to the following matters, in the order listed (from greater to lesser):

                     (a)  the purpose of this Act; and

(b)the purpose of the Resource Management Act 1991 set out in section 5 of that Act; and

(c) the matters for consideration in section 6 of the Resource Management Act 1991; and

(d) the matters for consideration in section 7 of the Resource Management Act 1991; and

(e) the provisions of any of the following, if relevant, made under the Resource Management Act 1991:

(i) any national direction:

(ii) operative and proposed policy statements and plans:

(iii) iwi management plans:

(iv) Mana Whakahono ā Rohe:

(v) joint management agreements; and

(f) the relevant provisions of the Resource Management Act 1991 or any other legislation that direct decision making under the Resource Management Act 1991 (see, for example, sections 104 to 107 of that Act and the provisions referred to in clauses 31 to 35).

 So the purpose of the Act is the most important consideration. The purpose of this Act is to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits. 

 Many people making submissions have noted that this is a pretty open ended clause. 

 Section 17 of the Bill perhaps narrows down a bit  what is a “significant benefit” . This clause says that in considering whether the project would have significant regional or national benefits (and hence be eligible for the fast track process) , the relevant  decision making Ministers may consider whether the project:

• has been identified as a priority project in a central government, local government, or sector plan or strategy (for example, in a general policy statement or spatial strategy) or central government infrastructure priority list:
• will deliver regionally or nationally significant infrastructure
• will increase the supply of housing, address housing needs, or contribute to a well-functioning urban environment (within the meaning of policy 1 of the National Policy Statement on Urban Development 2020):
• will deliver significant economic benefits
• will support primary industries, including aquaculture:
• will support development of natural resources, including minerals and petroleum:
• will support climate change mitigation, including the reduction or removal of greenhouse gas emissions:
• will support adaptation, resilience, and recovery from natural hazards:
• will address significant environmental issues:
• is consistent with local or regional planning documents, including spatial strategies.

 Plenty of room to manoeuver in that list also. 

Setting weights in decision making is helpful. Weights help decision makers focus on the important outcomes. 

 There may be no need to set weights if there is agreement as to the equal importance of each decision making criterion in contributing to the desired outcome, and if decision making criteria are appropriately differentiated and do not overlap or double up.

 Generally in environmental decision making there is no agreement over the importance of different factors, while there are plenty of double ups.  So setting weights is important. 

Setting weights is one of the more complex and overlooked matters when preparing plans and analyzing options.  Societal values are never far from the surface of most decision making crtieria and setting weights inevitably involves judgements. It is often easier at the plan making stage to give everything equal weight so that all the different interests in environmental management get acknowledged without picking a winner.

 Having said that, it could be argued that plans have steadily made progress on placing more weight on some outcomes rather than others. Some newer plans recognise the importance of infrastructure for example. Spatial strategies are supposed to help determine priorities for development in different areas, with plans setting out “go” and “no-go” areas. Section 6 of the RMA helps set bottom lines for particularly important resources. National directions (like National Policy Statements) have also sought to elevate the weight given to certain outcomes (like freshwater or urban development). But progress in up dating plans is slow and variable across the coumtry.

 When it comes to consideration of specific applications, things get murky as to the role of weights. On the one hand there is the avoid- remedy - mitigate approach. Each adverse effect of a proposed development is considered in isolation and a decision made as to whether the various individual adverse effects are adequately avoided or mitigated. Plans help in this assessment but are not the final answer. There is no need for weights, its more a matter of getting to (an often moving) finish line - or is that the start line?

On the other hand, increasingly assessment of specific projects is being pushed into more of a cost-benefit type analysis. Can benefits off-set costs? That is, some effects of a development may not be able to be appropriately mitigated, but in the total scheme of things can be traded off for the benefits the scheme or development may bring. Some effects may not be able to be traded off - the bottom lines, but others can - like changes to urban amenity. 

The fast track bill feels like it falls into the second, emerging approach.  So does the fast track bill’s weights help? If the Bill recreated the approach of plans trying to find the appropriate balance between development and environmental management, then the Bill doesn’t really add much. This could be said to be the weakness of the previous Covid Fast Track Act. The previous fast track act had a dual purpose to urgently promote employment 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 main benefit of the fast track act (was in theory) a faster process of comments, not submissions; no hearings and limited appeal rights. 

The Fast Track Approvals Bill is not unlike a previous attempt to speed things up - Special Housing Areas. That legislation - Housing Accords and Special Housing Areas Act 2013 - gave most weight in decision making  to theAct’s purpose, which was to enhance housing affordability by facilitating an increase in land and housing supply in certain regions or districts identified as having housing supply and affordability issues.

The problem that the current Bill runs into is that all decision making on urban and environmental management issues are context specific. In some cases, environmental bottom lines should prevail. In other cases not. It is not helpful to set a broad ranging priority that seeks to work in these different contexts. At least the Special Housing Areas Act worked in the context of some sort of 'balanced' pre-selection of areas to be urbanized / intensified, with the Act more focused on “how” these areas were to be developed, rather than whether they were to be subdivided and developed in the first place. 

 The Fast Track Approvals Bill trys to do both. It seeks to re weight decision making in favour of developments like infrastructure and housing while also speeding things up. 

In the right place, more housing and better infrastructue are good things to support, but I think a more lasting approach to imbedding these outcomes would be through considered changes to district plans that could provide the right context for the application of variable weights: In some cases weight could be given in plans to development, in other cases weight could be given to environmental outcomes.  By cutting across good plan making, the Bill may actually result in plans getting more strident about envioronmental protection to help re balance the Bill's perceived focus on development. 

If it is to proceed, should the Fast Track Approvals Bill adopt a more classical cost-benefit approach; that is whether the benefits of the project outweigh the environmental costs, but with some safeguards built in. For example, that only larger scale projects (say, over $50 million) should be eligible; that the benefits should be independently verified by the regulator; that the decision making criteira  should ensure proper account of the necessary mitigation of adverse effects. By proper account, I mean appropriate consideration of intangible values, cumulative effects and future effects - aspects that often get little attention in assessments. To get the tick, should benefits exceed costs by a factor of 2 to account for likely systemic under reporting of environmental costs?

Sounds like an overall broad judgement!  Structured Decision Making is perhaps a better term.