New Fast-track Approvals Bill - A Game Changer for Major Projects?
The Government has released the new Fast-track Approvals Bill which aims to accelerate projects with significant regional or national benefits.
The Bill had its first reading in Parliament today (7 March) and will now go through the select committee process.
The Bill establishes an alternative consenting pathway for major infrastructure and development projects, with decisions made by an Expert Panel and the joint Ministers, rather than councils.
The proposed system will be a ‘one-stop-shop’ for resource consents, notices of requirement, and certificates of compliance under the Resource Management Act and approvals required under the:
The Wildlife Act 1953
The Conservation Act 1987
The Reserves Act 1977
The Freshwater Fisheries Regulations 1983
The Heritage New Zealand Pouhere Taonga Act 2014
The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
The Crown Minerals Act 1991
The Public Works Act 1981
This guide provides an overview of the Bill from our initial reading.
AI-generated image from DALL·E
One-stop shop
The Fast-track Approvals Bill provides a streamlined process for obtaining approvals under multiple Acts, not just resource consents under the Resource Management Act 1991.
According to Clause 10(1), the fast-track process can be used to obtain approvals under the Wildlife Act 1953, Conservation Act 1987, Reserves Act 1977, Freshwater Fisheries Regulations 1983, Heritage New Zealand Pouhere Taonga Act 2014, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, Crown Minerals Act 1991, and for certain Public Works Act 1981 processes.
Clause 10(3) states that these approvals can be granted under the Fast-track Approvals Act instead of under their normal legislation. So applicants can bundle all the required approvals for a project into one fast-track application, rather than applying separately under each relevant Act.
This is intended to streamline the overall approvals process for eligible infrastructure and development projects.
Key components and eligible projects
Part 2 of the Bill sets out the fast-track process. Projects are referred to an Expert Panel either automatically if listed in Part A of Schedule 2, or potentially for Schedule 2 Part B projects and any other eligible projects Ministers consider appropriate (Clause 12).
Eligible projects under Clause 17 must help achieve the Bill's purpose, meet certain criteria like delivering significant regional or national benefits, and have sufficient information to inform a referral decision. Housing, infrastructure and economic development projects are likely candidates. Some activities and areas like national parks are excluded (Clause 18).
Key Timeframes
Some key statutory timeframes in the Bill include:
EPA has 10 working days to determine if a referral application is complete (Clause 15)
Parties have 10 working days to provide comments to the Panel (Schedule 4, Clause 21)
The Panel has 25-50 working days to issue its recommendation to Ministers after receiving comments, depending on significance (Schedule 4, Clause 39)
Implications for consultation including neighbours
Project applicants must consult with several parties before applying, including relevant iwi/hapū, neighbouring landowners and occupiers (Clauses 14 and 16).
Once an application is referred, the Expert Panel must invite written comments from neighbours and a range of parties (Schedule 4, Clause 20). However, the Panel has discretion whether to hold a hearing and there are no formal submission or appeal rights.
Affected neighbours and other parties will need to engage proactively to have their views considered.
Role of Councils
Councils' main roles are providing initial written comments when invited (Clause 19), assisting Panels with information and advice (Schedule 3), and administering approved resource consents and designations (Schedule 4, Clause 45).
Councils will need to adjust their processes and resourcing to engage within the tight timeframes. Some councils may have already taken steps in this direction as part of their involvement under the COVID-19 Recovery (Fast-track Consenting) Act 2020.
The Bill enables some cost recovery from applicants (Schedule 3, Clause 13).
Process for Developers
Developers seeking referral must apply to the joint Ministers via the Ministry for the Environment, providing comprehensive information (Clause 14).
This includes the regional/national benefits, environmental effects, consultation undertaken, and all necessary planning approvals and supporting material. The referral decision involves an evaluation against set eligibility and ineligibility criteria (Clauses 17-18).
For approved projects, the Panel assesses the application and makes recommendations to Ministers, who make the final decision (Clause 25 and Schedule 4, Clause 40).
Appeal rights are limited to points of law (Clause 26).
Are applicants required to use the fast-track process for all approvals needed for a referred project?
No, the Fast-track Approvals Bill does not appear to mandate the use of the fast-track process for every approval a referred project may require.
Clause 10(3) states that approvals "may" be granted under the fast-track process instead of under the standard legislation, suggesting it is optional.
Schedule 4, Clause 31 also makes clear that an applicant can still choose to apply for resource consents or notices of requirement under the normal Resource Management Act process rather than using the fast-track process, even if their project is eligible to be referred.
So while the Bill allows applicants to bundle all necessary approvals into the fast-track process for efficiency, it does not seem to prevent them from seeking those other approvals separately through the normal channels if they wish.
Who is responsible for monitoring compliance with the conditions of consents granted under the Act?
According to Clause 45 in Schedule 4, the local authority (council) that would have been responsible for granting the resource consent under the Resource Management Act 1991 (if the fast-track process had not been used) is responsible for all monitoring and enforcement of the consent as if it had granted the consent itself.
Clause 45(2)(a) states that the local authority "has all the functions, powers, and duties in relation to a resource consent granted under this Act, as if it had granted the resource consent itself."
Additionally, Clause 12 in Schedule 9 clarifies that for a marine consent granted under the fast-track process, the Environmental Protection Authority (EPA) is responsible for monitoring compliance as it would be for any other marine consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.
How are the costs of the fast-track process apportioned and who pays them?
The costs of the fast-track approvals process are largely borne by the applicant, with each regulatory agency able to recover its actual and reasonable costs from the applicant. This is set out in Clause 14 of Schedule 3.
Specifically:
The EPA recovers its costs for providing assistance before the application is lodged (Clause 14(2)) and for its role in the process after lodgement (Clause 14(3)).
Any local authority recovers its costs for complying with Schedule 3 and Schedule 4 (Clause 14(1)).
Each government agency recovers its costs for performing its functions, powers and duties under the Act (Clause 14(4)).
The Minister recovers their costs and the costs of the expert panel (Clause 14(5)).
These costs are all recoverable from the applicant. The agencies can require an estimate of costs to be paid in advance (Clause 14(7)). For the EPA, local authorities, and other agencies (but not the Minister), the costs must be for the sole purpose of recovering reasonable costs and they must be reasonably and efficiently incurred (Clause 14(8)).
For resource consents, the applicant has the standard RMA rights to object to additional costs (Clause 14(9)). The Bill also allows regulations to be made to specify a method of cost recovery (Clause 31).
Why Engaging a Planning Consultant is Essential
The new Bill introduces a streamlined consenting process for eligible infrastructure and development projects. While designed to accelerate approvals, the process is still complex with extensive information requirements and consultation obligations.
Here are four key reasons why engaging a planning consultant will be crucial for successfully navigating the fast-track process:
Demonstrating eligibility: The first hurdle is getting your project referred into the fast-track process. Clause 14 requires a comprehensive referral application demonstrating the project meets the eligibility criteria. A planning consultant can compile the necessary information to make a compelling case, increasing the chances of your project being accepted.
Managing complex information requirements: Once referred, preparing the actual consent applications and notices of requirement is a major undertaking. Schedules 4 to 12 set out detailed information needs, including assessments of environmental effects, impacts on Māori interests, alignment with planning documents, and more. A consultant can efficiently pull together these complex applications across multiple Acts with the help of other relevant experts and legal counsel.
Facilitating effective consultation: Clause 16 requires applicants to consult with iwi, hapū, local authorities and affected parties before even lodging a referral application. A planning consultant can advise on these obligations and assist with undertaking effective consultation early in the process to build support and reduce risks of delay.
Responding to further information requests and comments: Once an expert panel is assessing your application, they can request further information under Clause 28, Schedule 4. Invited parties can also provide comments. A consultant can efficiently coordinate preparing further information and responding to comments within the tight timeframes.
With the tight statutory timeframes under the Bill, there is little room for delay. Engaging legal counsel, a planning consultant and an experienced expert team from the outset will ensure you put your best foot forward in the referral application, provide high-quality information in consent applications, effectively engage with Māori and other stakeholders, and respond quickly to panel requests and comments.
A planning consultant will help de-risk and accelerate your path through the new fast-track process, giving you the greatest chance of successful and timely approvals for your major project.
Strengths and Weaknesses
The Bill provides a streamlined process for major projects, with set timeframes and limitations on further approvals. Having a single Expert Panel consider all relevant approvals could enable more integrated decisions. This will be an improvement on the COVID-19 Recovery (Fast-track Consenting) Act 2020, which required the establishment of a new Expert Panel for each project.
The ministerial decision-making, constrained appeal rights and limited formal consultation may be concerning for communities and councils. Much depends on the operation of the Expert Panels. The wide eligibility criteria and ministerial discretion also creates some uncertainty.
Further Reading
Conclusion
The Fast-track Approvals Bill proposes a significant change to the status quo for major project consenting, building on the work of the previous government under the COVID-19 Recovery (Fast-track Consenting) Act 2020 and the Natural and Built Environment Act 2023.
It aims to accelerate regionally and nationally important projects, but raises questions around consultation and ministerial powers.
Scrutiny of the Bill will be important to ensure it strikes the right balance between efficiency and environmental/community outcomes.
Planning professionals will need to be across the detail to assist clients in navigating this new regime.
We’ll publish further updates as this Bill navigates through the parliamentary process.
