The Environment Select Committee issued its report on the Fast-track Approvals Bill on 18 October 2024 (the Report).
The purpose of the Fast-track Approvals Bill (the Bill) is to facilitate the delivery of infrastructure and development projects with significant regional or national benefits. Notably this legislation is proposed to be more enabling for development and broader in scope than previous fast-track legislation.
The Bill was introduced by the Government to Parliament in March 2024 and was then the subject of the Select Committee submissions process. The Environment Committee heard from 1,100 of the 27,000 persons and entities who submitted on the Bill.
In response to the issues raised during the Select Committee hearing process, Cabinet announced in September that it had agreed to recommend a number of key changes to the Bill to the Environment Committee as follows:
- Projects will be referred to an expert panel by the Minister for Infrastructure alone, who will be required to consult the Minister for the Environment and other relevant portfolio Ministers as part of that referral process
- Final decisions on projects will be made by the expert panel rather than by Ministers
- Expert panels will be required to have expertise in environmental matters; will include an iwi authority representative when required by Treaty settlements; and will include at least one member suitably qualified in te ao Māori and Māori development
- Applicants will be required to include information on previous decisions by approving authorities, including previous court decisions, in their applications for the referring Minister to consider
- Timeframes for comment at the referral and panel stages will be extended in order to give parties, including those impacted by a proposed project more time to provide comments.
The changes recommended respond to some of the key issues raised in submissions by environmental organisations and by developers.
The above changes have been included in the Report.
Notable further amendments recommended by the Environment Committee include restructuring the Bill to clarify that the process for securing the various approvals will be largely the same, subject to differing information requirements and assessment criteria applicable for each of the approvals. This provides a more cohesive approach to securing various approvals strengthening the Bill's 'one-stop shop' approach.
Taken together, what does the fast-track approvals process look like as recommended by the Environment Committee?
- Eligibility: Nationally and regionally significant projects can seek to utilise the process. This includes the 149 projects identified by the Government in early October as being listed in Schedule 2 of the Bill. These listed projects are afforded an opportunity to obtain approvals through the fast-track process without the need for a prior referral. Other projects may, however, apply through a referral process to have the benefit of the fast-track process. The Environment Committee has also clarified that existing regionally or nationally significant infrastructure is eligible for the fast-track approvals process.
- One-stop shop: The process continues to cover a wide range of approvals, including those under the Resource Management Act 1991 (RMA), Wildlife Act 1953, Conservation Act 1987, Reserves Act 1977, Heritage New Zealand Pouhere Taonga Act 2014, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, Crown Minerals Act 1991 and Public Works Act 1981.
- Role of the Ministers: As above, the Minister for Infrastructure can refer projects to an expert panel.
- Role of expert panels: In making the final decision on substantive applications the panel must assess all environmental effects of the project, and relevant Treaty settlements, Takutai Moana commitments, Mana Whakahono ā Rohe and Joint Management Agreements.
- Expertise of panels: Panels will be collectively required to have the knowledge, skills and expertise relevant to the approvals sought in the substantive application and 'expertise in environmental matters'. As above, panels will include an iwi authority representative only when required by Treaty settlements; but will include at least one member suitably qualified in te ao Māori and Māori development.
- Role of Part 2 of the RMA and policy and planning documents of the RMA: The Bill changes how Part 2 of the RMA applies. It specifies that the greatest weight is to be given to the purpose of the Bill, followed by parts 2, 6 (section 104D which prescribes a specific additional 'gateway' for non-complying activities, is disapplied) and 8 – 10 of the RMA, which would include regard to relevant RMA policy and planning documents. The Bill does not include an equivalent of section 8 of the RMA (take into account the principles of the Treaty of Waitangi).
- Participation: As with the earlier fast-track legislation, applications are not 'notified' in the RMA sense. An applicant for both a referral and substantive application must, however, consult with iwi authorities and groups, local authorities and administering agencies. At the referral stage, comments must then be invited from local authorities, Ministers, Māori groups and owners of Māori land in the project area. At the substantive application stage, these groups must again be invited to comment, alongside Treaty settlement entities / related entities and Takutai Moana rights holders, landowners and occupiers (and those of adjacent property), requiring authorities and other persons invited by the panel. For conservation approvals, others with statutory responsibilities, including the Conservation Authority and Fish and Game, have the ability to comment. Comments must be received within 20 working days of the invitation. A report on Treaty settlements, and from other relevant administering agencies, must also be prepared and considered in a referral application.
- Climate change mitigation: Climate change mitigation and removal of greenhouse gases is one of the eligibility criteria for projects to be referred. Climate emission provisions in plans (if any) will be relevant according to the new hierarchy set out above.
- Timeframes: Expert panels will have 25 working days after receipt of comments to make their recommendation to the Minister (with any conditions). However, if the scale of the project requires, this can be extended by the panel (with no time limit).
- Hearings: No hearing is required unless the panel considers it is required in the circumstances.
- Role of local authorities: Local authorities will be invited to comment at the referral and substantive application stages. Applicants are also required to consult with local authorities before they apply. Information can be requested from local authorities and local authorities can recover actual and reasonable costs of participation from applicants. Consents granted by Panels are deemed to have been granted as if by the local authorities.
- Appeals: Appeals are limited to point of law appeals to the High Court. Any further appeals must seek leave from the Supreme Court. Appeal rights are only available to applicants, local authorities, the Attorney-General, persons who have made comments, and any person who has an interest in the decision greater than the public generally.
- Resourcing panels: Panels are to be supported by the Environmental Protection Authority and panel members will be remunerated in accordance with the Government's fees framework.
- Information requirements for applicants: Detailed information must be included in referral applications, with more comprehensive information is to be provided in the substantive application including, for example, assessments of environmental effects. Substantive applications are also required to include information on any previous decisions made by approving authorities including, under other legislation. This includes court decisions.
- Lapse: The lapse period for approvals granted under the Bill is a default of five years unless the panel specifies an alternative lapse period (with a minimum of two years and no maximum).
Our Fast-track consenting experience
Our national environment and resource management team has been closely following the development of this new legislation and is advising a number of clients who have nominated projects to be listed for fast-track consenting. We are therefore well positioned to assist clients on proposed fast-track projects.
Our team also has extensive experience in previous fast-track consenting processes under the COVID-19 Recovery (Fast-track Consenting) Act 2020 and Natural and Built Environment Act 2023. For more information on our Fast-track expertise, please see our credentials. Please contact a member of our team if you would like to discuss the potential implications of the Bill and what this may mean for your organisation.
