The Fast-track Approvals Bill

Time is running out to apply to have your project included in the Fast-track Approvals Bill (the Bill). Listed project applications must be submitted by Friday 3 May.

Introduced under urgency last month, the Bill creates a “one-stop-shop” pathway for infrastructure and development projects to obtain Resource Management Act 1991 (RMA) and other legislative approvals. By streamlining various approval processes into a single track assessed by an expert panel, and with final decision-making power with the Ministers of Infrastructure, Regional Development, and Transport (the joint Ministers), the Bill is expected to reduce costs and extensive consenting timeframes.

Key features of the fast-track process

Key features expected to reduce time and costs are:

  • A wide one-stop-shop – the fast-track process enables projects to obtain certain approvals under multiple legislative controls all in one place. Approvals such as resource consents or notices of requirement under the RMA, authority under the Wildlife Act 1953, approvals under the Conservation Act 1987 or the Reserves Act 1977, land access arrangements under the Crown Minerals Act 1991 (CMA) and proclamations under the Public Works Act 1981, can all be processed together;
  • Joint Minister gateway – the joint Ministers determine whether to refer a project into the fast-track process. Once approved as a referred project, applicants will generally have up to 2 years to submit their application, although the joint Ministers can impose a specific deadline;
  • 6 months – once a project is referred to an expert panel, the panel has 6 months to consider the project and recommend whether it should be declined, approved, or approved with conditions;
  • Primacy of purpose – when considering projects, the expert panel must give greater weight to the purpose of the Bill above the purpose of other relevant legislation (such as the RMA);
  • Final decision-maker – final approval power rests with the joint Ministers (and in some cases the Minister for Conservation and/or the Minister responsible for the CMA as well). The joint Ministers are not bound to follow the recommendations of the expert panel;
  • Limited public involvement – the joint Ministers and the expert panel are not required to invite comments from the general public; and
  • Limited rights of appeal – a limited class of persons can appeal a grant or decline decision by the joint Ministers to the High Court and only on points of law. There are very limited further rights of appeal beyond the High Court.

Referral process for eligible projects

Amongst other eligibility criteria, a project must first have consulted with relevant local authorities, and relevant iwi, hapu and Treaty settlement entities and include in their application a record of the engagement and explain how the engagement has informed the project. The applicant can then submit its application to the Environmental Protection Authority (EPA).

The EPA must decide whether the application is complete within 10 working days of receiving it. If complete, the EPA forwards the application to the joint Ministers, who then decide whether to refer the project to an expert panel.

In determining whether to refer a project, the joint Ministers must consider the following criteria:

  • whether referring the project will be consistent with the purpose of the Bill;
  • whether fast-tracking the project will be quicker and more cost-efficient than the normal process(es) it would otherwise use;
  • what impact referring the project would have on the efficient operation on the fast-track process;
  • whether the project has significant regional or national benefits; and
  • whether the application has sufficient information to inform the joint Ministers’ decision.

The Bill earmarks a number of project types that could have regional or national benefits, including: significant infrastructure, projects that address the housing crisis, development of natural resources (such as minerals and petroleum), projects that support primary industries, or support recovery from natural hazards.

Listed projects

As well as the standard referral process above, there are two other ways in which eligible projects can enter the fast-track process:

  1. Listed projects – Schedule 2A: these projects are automatically able to lodge an application directly to the EPA which will then assign the project to an Expert Panel; and
  2. Listed referred projects – Schedule 2B: these projects must still apply to the joint Ministers for referral to an expert panel, but will not need to again demonstrate that they are regionally or nationally significant.

Applications for projects wanting to be listed under Schedule 2A and B are currently open and will close on 3 May 2024. Applications will be considered by the recently-appointed Fast-Track Advisory Panel[1] who will make recommendations to Cabinet. Cabinet will have the final say on which projects get listed.

The Expert Panels

The Minister for Infrastructure will appoint a former (including retired) Environment Court or High Court Judge to be the panel convenor. The primary responsibility of the panel convenor is to appoint the members of expert panels for listed or referred projects, in consultation with the Minster for Infrastructure.

Each expert panel must include:

  • one member nominated by the relevant local authorities;
  • one member nominated by the relevant iwi authorities; and
  • a chairperson who is a suitably qualified lawyer or planner with experience in relevant law (in some cases, the panel convenor can be the chairperson).

Collectively, the panel must have the requisite knowledge and experience relevant to: the purpose of the Bill, technical expertise relevant to the project, te Tiriti o Waitangi and its principles, tikanga Māori and mātauranga Māori, and (if appropriate) conservation expertise. Generally expert panels will have a maximum of four members, however the panel convenor has discretion to appoint more members if needed.

Other aspects to note

Any resource consents issued under the fast-track process will be subject to a maximum lapse date of two years.

On certain approvals, Applicants cannot run parallel processes. For example, applicants behind a listed or referred project can still use the standard RMA process to obtain resource consents, but must withdraw any live consent application before pursuing the same approval under the fast-track process.

The fast-track process is not an automatic gateway for prohibited activities or dubious operators. While projects that involve a prohibited activity under the RMA can still apply to the joint Ministers, the joint Ministers can decline to refer a project because it has a prohibited activity within it. The joint Ministers can also decline to refer a project if the applicant has a poor compliance record.

Because of the Bill’s reliance on Ministerial decision-making coupled with limited appeal rights, we may see a rise in judicial review proceedings once the fast-track process passes into law. For example, if the joint Ministers decide to approve a project that the expert panel recommended be declined, or the joint Ministers decide to alter the recommended conditions as part of the approval process.

Expert Panels are subject to the Local Government Official Information and Meetings Act 1987 as if they were a board of inquiry appointed under section 149J of the RMA.

What’s next for the Bill?

  • The closing date for public submissions is Friday 19 April 2024.
  • Applicants wanting to nominate their project for inclusion in Schedule 2 must submit their application by Friday 3 May.
  • The Select Committee is expected to produce its report by no later than 7 September 2024.

If you have an eligible project and want to prepare an application to be a listed project in the Bill or apply to be a referred project once the Bill comes info force, talk to one of our fast-track specialists.

Alexandra Isherwood
021 023 03482

Johanna King
021 917 140

Sam Chidgey
021 221 1388