In earlier articles available here and here, we outlined developments with the Fast-track Approvals Bill. This month there have been two major developments associated with the Bill:
selection of projects for listing in Schedule 2 of the Bill; and
publication of the Environment Committee’s recommendations on the draft Bill.
We unpack these developments below.
Listed project selection
In early October, the Government released its list of 149 infrastructure and development projects selected for inclusion as listed projects in Schedule 2 of the Bill. These projects were chosen from the original applicant pool of 384 projects, and are broken down into sector-type as follows:
housing and land development projects (58 projects);
infrastructure projects (43 projects);
renewable energy projects (22 projects);
mining projects (11 projects);
quarrying projects (8 projects); and
aquaculture and farming projects (7 projects).
Read the full list of selected projects here.
Listed projects will be able to access the fast-track consenting process as soon as the Bill is enacted.
ChanceryGreen is advising a wide range of clients on the proposed fast-track process, including in relation to a number of the 149 projects selected to be listed in Schedule 2 of the Bill.
Environment Committee recommendations
On Friday 18 October, the Environment Committee issued its report on the draft Bill following receipt of nearly 26,000 public submissions. The report recommends wholesale amendments, although key substantive processes are retained. Many of the recommended amendments will be important for potential applicants under the fast-track regime. We have distilled ten key take-aways below.
Bill’s purpose: Recommendation that the amended purpose of the Bill be “to facilitate the delivery of infrastructure and development projects with significant regional or national benefits”. This changes the focus from providing a fast-track decision-making process, to facilitating the actual delivery of projects. This is positive for applicants, especially when it comes to the substantive decision-making provisions (see below).
Final decision-maker: Recommendation that the expert panels, not Ministers, be the final substantive decision-makers. This change was widely forecasted prior to the Committee’s report.
Decision-maker on referrals: Recommendation that the Minister for Infrastructure be the sole decision-maker on referral applications (i.e. whether a project can access the fast-track process), rather than joint Ministers.
Decision-making process: This process has essentially been rewritten. Panels are still required to give the greatest weight to the purpose of the Act when considering applications. This is positive for applicants, especially for applications which may have material consenting challenges under the RMA. However, the original Bill’s cascading hierarchy of matters for the consideration of resource consents and notices of requirement – requiring greater to lesser consideration of various matters – has been done away with. This change is unhelpful to applicants in that it creates uncertainty in how different considerations will be weighed.
Declining applications: As was the case under the original Bill, applications can ultimately be declined. The Committee has recommended provisions providing some context for when an application may be declined – being if an activity sought would have 1 or more adverse impact, and the adverse impacts are substantial enough to outweigh purpose of the Act even after applying conditions. We anticipate that this may create additional challenges for applicants.
Timing of panel decisions: Timeframe for making a decision on an application of 25 working days retained; however, recommendation that panels can extend that timeframe “as it considers appropriate”. In our view, providing the ability for an essentially unlimited timeframe on decision-making could mean that the fast-track process is not that fast at all for some applications.
Lapse period: Amending the lapse period provisions for resource consents and designations so that they match those in the RMA (i.e. a default lapse period of five years; or as otherwise set by the panel in its decision, with a minimum of two years). Originally, the maximum lapse period was two years. This is a material “win” for prospective applicants.
Ineligible projects: The provisions setting out which activities are ineligible for the fast-track process are recommended to be amended and reinforced. However, areas over which customary marine title or protected customary rights have been granted under the Marine and Coastal Area Act 2011 are to remain ineligible where:
the approval of the holder is not obtained (for customary marine title); and
the activity would have a more than minor adverse effect on the exercise of protected customary rights (for protected customary rights).
Conditions: Recommended requirement that any conditions imposed by the panel “must be no more onerous than necessary”. While this wording is unusually broad, we suspect applicants will use it to their advantage.
Maintenance and upgrades: Recommendation to insert a new clause to make it clear that maintenance and upgrade projects that allow for the continued functioning of existing regionally or nationally significant infrastructure can be eligible for the fast-track approvals process.
Overall, the recommended changes to the Bill are a “mixed bag” for applicants. Some changes are positive, such as the extended lapse period and amended ‘purpose’ section; however, others go backwards, such as the removal of the cascading hierarchy of matters for consideration in the decision-making process.
The next steps in the fast-track regime’s development are a second and third reading of the Bill, with the Government’s aim being to pass the Bill into law before Christmas. We will provide further updates as these phases progress.
If you would like more information about the implications of the Environment Committee’s recommended changes to the Bill, please contact a member of our team.