Critical statutory requirements

Introduction

There are a number of legislative requirements to consider during all business case optioneering and decision-making processes. In particular, robust, transparent and well-documented optioneering and decision-making processes are critical to meet the statutory requirements under the Land Transport Management Act 2003 (LTMA), Resource Management Act 1991 (RMA) and Public Works Act 1981 (PWA). Rather than adding unnecessary layers of complexity, these legislative obligations generally reflect best practice and are likely to enhance business case processes and outcomes.

Land Transport Management Act 2003

The LTMA sets out the legislative requirements which govern Waka Kotahi NZ Transport Agency investment from the National Land Transport Fund (NLTF). When Waka Kotahi is approving proposed activities or a combination of activities, it must be satisfied that key legislative requirements under section 20 have been met, including that an activity or combination of activities:

• is consistent with the Government Policy Statement on land transport
• is efficient and effective
• contributes to Waka Kotahi objectives
• has, to the extent practicable, been assessed against other land transport options and alternatives.

In addition, the LTMA places a number of obligations on the way Waka Kotahi undertakes its functions.  In particular, it requires Waka Kotahi to:

• exhibit a sense of environmental and social responsibility
• facilitate participation by Māori in land transport decision making
• ensure transparency in decision making, use of revenue and expenditure.

Resource Management Act 1991 and Public Works Act 1981 considerations

Investment proposals requiring approvals under the RMA, and/or requiring compulsory acquisition of land under the PWA, may be required to meet certain tests associated with optioneering and decision-making processes. This influences business case development processes and decisions across the entire business case development process; a thread that runs from the strategic case through to the implementation of a preferred solution.

These RMA and/or PWA requirements mean Waka Kotahi and its investment partners must clearly demonstrate:

• adequate consideration of alternatives throughout the optioneering process (from longlisting onwards). It is not necessary to consider all possible alternatives and options or evidentially eliminate alternatives that are clearly speculative or suppositious. In terms of the requirements under the RMA, an organisation is also not required to select the ‘best’ option.  What is necessary is to demonstrate that an appropriately broad range of alternatives has been adequately considered
• systematic and transparent optioneering and decision-making processes
• a sound argument for why any proposed physical works are ‘reasonably necessary’ (under the RMA) including the ability to demonstrate ’reasonable need’ for any land required (PWA)
• appropriate recognition and provision for the principles of Te Tiriti o Waitangi in relation to managing the use, development, and protection of natural and physical resources and the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga
• consideration of a proposal’s social, cultural, environmental and economic effects and appropriate action considered to avoid, remedy or mitigate any adverse effects.

While the specific RMA and/or PWA requirements associated with a particular activity are not known until at least the indicative business case stage, it is necessary to ensure that all optioneering and decision-making processes meet these requirements from the outset, to ensure they are sufficiently robust to support any subsequent RMA approval or PWA requirements.

Seeking early input from property, RMA planning, technical and legal specialists into the business case process (particularly from longlisting onwards) will help support integrated decision making and ensure these processes meet the necessary legislative requirements.

The process of refining alternatives and options from a longlist, to a shortlist, to a preferred solution involves an increasingly refined process with progressively more detailed and focused investigations and information filtering. The inclusion of ‘environmental’ criteria in optioneering processes will almost always be appropriate from the longlist stage onwards, with increased granularity required at the shortlist stage.

It is likely that specific environmental criteria will be required to assess different physical options (eg different greenfield transport corridors). Identification of appropriate environmental criteria should be based on an assessment of constraints, opportunities and risks applicable to the area in question.