Last week the government introduced the Fast Track Approvals Bill to the House as part of its 100 Day Action Plan. This is part of Nationals coalition agreement with New Zealand First.
You may have seen this mentioned in the media as a “one stop shop”, cutting the “red tape” for larger projects. But what is it and how does it work?
One Stop Shop consenting
Now, a development may require consent under a number of Acts, and these are usually obtained separately. Under the Fast Track Approvals Bill, its proposed that an approval will replace the need for:
-
-
Resource consents, notices of requirement, alterations to designations and certificates of compliance under the Resource Management Act 1991,
-
-
-
Marine consents under the Exclusive Economic Zone and Continental Shelf Environment Effects Act 2012,
-
-
-
Section 61 land access arrangements under the Crown Minerals Act 1991,
-
-
-
Applications for archaeological authority under the Heritage New Zealand Pouhere Taonga Act 2014,
-
-
-
Concessions and other permissions under the Conservation Act 1987 and Reserves Act 1977,
-
-
-
Approvals under the Wildlife Act 1953,
-
-
-
Aquaculture decisions under the Fisheries Act 1996.
-
Giving an overall consent instead of separate approvals under the above legislation is the “one stop shop” approach.
What’s the “Purpose” of the Bill
The “Purpose” of the Bill sets out its overarching aim, what it’s trying to achieve. This is stated in the Bill as:
to provide a fast-track decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits.
Exactly what “significant regional or national benefits” are, is somewhat unknown at this stage, as the information in the Bill is quite broad. It could be that this threshold is actually quite low, and a large number of projects could be included.
How is it proposed to work?
The process will have two main stages- the referral/ scheduling stage and the decision stage.
1. Referral or Scheduling Stage
Not all development will be able to use the new fast track process- only projects that are deemed to be of “significant regional or national benefit” will be eligible for the process (although what this means in practise will likely be the subject of many submissions).
These projects will be either specifically listed in the future Act (in Schedule 2), or an application can be made for referral. We understand that an independent advisory group is being put together now to consider what projects should be included in Schedule 2. At this point, they are to be added to the Bill at a later stage via Supplementary Order Paper, which does have an impact on people’s ability to make a submission on the specific projects to be included. This may create issues for some, as being a project listed in Scheduled 2 from the start will essentially jump this “Step 1” process.
Considering the fast track process can involve activities that are prohibited under other Acts (where you could not even apply for a resource consent), this could result in projects with potentially significant adverse effects being subject to less scrutiny and there being limited ability for public input.
To be considered for eligibility of the fast track process via a referral (i.e. when the project is not specifically listed in Scheule 2 of the Act), a project must be consistent with the purpose of the Act, using the fast track process must be more timely and cost- efficient process than the usual consenting processes, the project must be of significant benefit, and it must not adversely impact on the efficient operation of the fast track process.
Where an application is made for referral approval, information must be submitted, including:
-
-
Description of known and anticipated adverse effects (an “assessment” is not specifically required at this stage).
-
-
-
Details of consultation. Consultation with Māori entities, local authorities and other listed parties is required.
-
The referral application cannot be notified.
The Joint Ministers of Infrastructure, Transport and Regional Development (and others in some cases) will decide if the project should be referred to the fast track process or if the application should be declined (and the project would then have to go through the usual resource consenting (and other) processes).
2. The Decision Stage
This is the more detailed assessment step and will involve the applicant submitting an application to the Environmental Protection Authority (EPA). This application also cannot be notified, which again limits the ability for interested people to become formally involved. Comments from only specific people or groups will be invited, and this includes local authorities, Māori entities, Ministers, landowners and occupiers.
The application will be considered by an expert Panel. This Panel will include planners and/ or lawyers, local government and iwi representatives. The Panel needs to have on it the relevant skills and expertise for the specific application. Given the number of Acts to be covered by the Fast Track Approvals Bill, this could be a big ask. The Panel can seek further information and commission reports as part of their assessments.
The Panel will make a recommendation on the application and set this out in a report to the Joint Ministers. The final decision is however made by the Joint Ministers, who have significant abilities to make a different decision to the expert Panels recommendation.
The Fast-track Bill has a two-year lapse date, which may be too short for larger projects. We expect submissions will be made about this issue also.
Concerns with the Bill
A number of individuals and groups have raised concerns with the Bill, including due to the issues noted above, what could be included in the Schedule or use the fast track process (could almost anything be argued to be of regional or national significance?), the lack of ability for public participation, the wide-reaching ability of Ministers to make final decisions and against the advice of an expert Panel, the lack of appeal rights and the resulting potential environmental outcomes.
You can see commentary in this regard from the Environmental Defence Society for example here.
There does seem potential for some poor outcomes under the fast track bill as its drafted now. With that said, the Bill has been drafted in a hurry- its only come about due to the government’s 100-day plan so has had a very short drafting timeframe- there are bound to be a number of conflicts, errors and loopholes.
On the positive side, there are undoubtedly good projects that get caught up inadvertently in red tape. These projects of regional or national significance should find a faster road with this new Bill.
Only a Bill at this stage
It’s important to highlight that this is only a Bill at this stage, and it still needs to go through the Select Committee Process, further readings etc. Submissions are open until 19 April 2024. It’s still important however to review the documents, understand where the government is heading, and make a submission if you want to support or challenge aspects of the Bill.
Where to from here?
The Bill is still in its initial stages and is unlikely to become law until late 2024[1]. It is likely to be amended to some degree at least through the process.
© Planning Plus Ltd 2024
[1] Major milestone for new Fast-Track Approvals regime with introduction of Fast-Track Approvals Bill | Ministry for the Environment
