In several earlier articles available here, here, and here we followed developments with the Fast-track Approvals Bill. The Bill has now passed into law.
Significant amendments in the Committee stage of the Bill have reshaped the Act, affecting matters such as when referral applications and substantive applications can be lodged, “priority projects”, the scope of approvals covered by the regime, decision-making on referral applications and substantive applications, and lapse periods.
Key changes
Below is a breakdown of key changes by way of Minister Bishop’s substantive amendment paper.
When applications can be lodged: Referral applications and substantive applications can be lodged from 7 February 2025.
Minister’s decisions on referral applications - stricter standards: The Minister must now decline (rather than may decline) a referral application if it lacks sufficient information to decide. Applicants must therefore prepare thorough proposals to avoid being declined.
Mining is in: Mining permits may now be sought as approvals under the Act.
Changing or cancelling existing consent conditions: Applicants can apply to change or cancel existing resource consent conditions through the fast-track process.
Priority projects - fast-tracking the fast-track: The Minister can declare a project as a “priority” if it is urgent, has no competing applications, and risks delay. Panels will be convened faster for these projects. This means important projects can “jump the queue”, ensuring timely progress of significant projects.
Managing competing applications and existing resource consents: New requirements address scenarios where multiple parties seek approvals for the same activity or where existing resource consents are in place. Ministers may decline applications if competing applications exist.
Declining applications - a high bar: Panels are required to decline applications if they breach obligations relating to Treaty settlements and recognised customary rights, or if they fail to meet the criteria specific to the approval sought. However, the Act reinforces the high bar for when the Panel can decline an approval. Panels must consider any conditions that may avoid, remedy, mitigate, offset, or compensate adverse impacts. Panels are also required not to form the view that an adverse impact is disproportionate to the regional or national benefits based solely on inconsistencies or breaches of other legislation or any other document that the Panel has considered.
Draft decisions - a second chance: Panels must now provide draft decisions to applicants before declining an application, giving them a chance to propose modifications or conditions, creating a potential “safety net”.
New concepts introduced - standard and complex freshwater fisheries activities: Complex freshwater fisheries activities (CFFA) include a range of activities, such as constructing culverts or fords that permanently block fish passage, permanent dams or diversion structures, and a range of other works. Fast-track approval can be obtained for CFFA that require an approval under the Freshwater Fisheries Regulations 1983. Applications for such approvals are subject to specific information requirements, require a report from the Director-General of DoC, are considered against bespoke decision-making criteria, and may be granted subject to fishery-specific conditions. In contrast, standard freshwater fisheries activities (SFFA) involve a range of other activities, including a culvert or ford that could impede but not permanently block fish passage, certain weirs, and other works. If a resource consent application includes a SFFA, specific information is required, and a Panel may impose conditions which avoid the requirement to obtain approvals for the activity under Regulations.
Timing adjustments for decisions: Unless the panel convenor sets a different timeframe, Panels must issue decisions within the default 30 working days (instead of 25) of receiving required comments. Appeals must also be lodged within 20 working days (instead of 15).
Default lapse period extended: The default lapse period of 5 years (as recommended by the Select Committee) has been removed. The lapse period may be set by the panel in its decision, being a minimum of two years.
Panel updates: A panel convenor can now include senior lawyers with resource management expertise.
Other noteworthy changes:
The list of those eligible to appeal decisions has been narrowed by removing reference to “any person who has an interest in the decision appealed against that is greater than that of the general public”. Applications for judicial review are also generally required within 20 days of a decision.
Of note, cost recovery from applicants now extends specifically to third parties (who are invited to, and provide, comment or information or appear at hearings).
Comment
The amendments are largely useful, in that they make logical improvements to process, providing greater clarity to applicants. Further, they make it harder for applications to be declined and provide applicants with a “second chance” before decisions to decline are issued, aligning with the Act’s goal of delivering regionally and nationally significant projects.
If you would like more information about the Act or any of these amendments, or wish to get an application underway, please contact a member of our team.