0
Contact Us
21/10/2024·4 mins to read
Select Committee reports back on the Fast Track Approvals Bill
The Fast Track Approvals Bill (the FTAB) has emerged from the Environment Select Committee with wholesale changes throughout. Some of the main changes have already been foreshadowed, others not.
A selection of the key changes are summarised and discussed below. We will provide more detailed analysis of the FTAB in the coming weeks that will be posted on our Fast-track resource centre which is available here.
Brief recap
Rather than reform the suite of legislation that large projects engage with, some of which is now up to 70 years old and is far from fit for purpose, the FTAB pulls all of those approvals into a single process. The FTAB sets an ‘over-riding’ test that out ranks the individual tests in the originating legislation.
The intention behind the FTAB is to facilitate the delivery of nationally and regionally significant infrastructure faster, and with more certainty. It is one of the Coalition Government’s primary economic development policies.
Fundamental changes
Final decision-making power removed from Ministers
As introduced, the FTAB gave three ministers (Infrastructure, Regional Development and Transport) an ability to choose eligible projects for the regime. It also gave those same ministers the final decision-making power for the environmental approvals. The former was a feature of the COVID Fast-track regime, the latter was a major change from the orthodox position in New Zealand.
A list of 149 projects to be included in Schedule 2A the FTAB has now been released. It includes roading, aquaculture, mining, quarrying, residential housing and other projects. The list is not included in the report back version which implicitly has left the Government with some room to make changes before it is introduced at the Committee stage.
The controversial final Ministerial decision-making power for approvals has been removed and replaced with a more orthodox decision-making process that delegates final decisions to expert panels. This significantly dilutes the concentration of discretionary power the FTAB originally gave to the three ministers.
While that change is a significant shift in policy, it is, in reality, a very practical change. The exercise of a Ministerial discretion to grant or decline approvals that over-rode a detailed expert panel hearing process was an obvious source of judicial review proceedings and risked being more problematic than beneficial to speeding up the delivery of projects.
Referral decisions made by the Minister of Infrastructure, but will it be used?
Projects not included in the list can access the regime through a Ministerial referral decision. As introduced, referral decisions were to be made by the three joint-Ministers. That has been changed to just the Minister of Infrastructure. Given 149 projects will be scheduled, it is difficult to see that the system has capacity for any additional projects during this Parliamentary term. It may be that the referral process is rarely used, at least in the short term.
The “test” that will be used to assess projects
The purpose of the FTAB and the ‘test’ that expert panels will apply when considering projects have both been rewritten. The purpose provision has been refocused on facilitating projects, rather than providing “fast-track decision-making process that facilitates… projects”. The change is a better expression of what was likely always intended.
The ‘test ’ that expert panels are to apply will be grappled with by practitioners and the courts for some time yet. The test is contained in the purpose of the Bill, the substantive body of the bill and spread across six schedules. It is complicated by any measure. The Schedules include similar but different weighting exercises for each type of approval. The purpose of the FTAB is to be given the greatest weight in each of those assessments. We will discuss this in more detail in a later publication.
However, what is likely to grab the attention of many commentators is the situations in which an expert panel can decline an approval. In summary, panels can decline an approval where they identify an adverse impact that is “sufficiently significant” to outweigh the purpose of the FTAB. The FTAB does not provide any guidance as to what a “sufficiently significant" adverse impact might be, which arguably leaves expert panels with a broad discretion to approve or decline approvals as they see fit based on the evidence before them.
Other changes
The report back version is a complete re-write of the Bill. There are a host of other changes to provisions about the eligibility criteria, the referral application process, obligations under Treaty Settlements, public participation, the expert panel process and much more.
Our initial impression is that despite the seven months select committee process, the drafting could still use some significant refinement. The referral and expert panel processes remain highly complicated and duplicative in places. Many of the timeframes remain unrealistic.
These problems were features of the FTAB as introduced. We created two flowcharts that set out how the introduced version would work for RMA consents and other Crown approvals (they are available here). We also pointed out a number of areas that could be improved in our submission to the Select Committee (available here).
There remains an opportunity for the FTAB to be further refined and improved through Amendment Papers. We will make some suggestions in our publications to come.
Contact us
We have extensive experience with processes under the COVID-19 Recovery (Fast Track Consenting) Act 2020 and Urban Development Act 2020 and are following the development of the Bill very closely. We are well placed to help clients navigate the new legislation. If you would like to discuss the potential implications of the Bill and what it may mean for you, please contact a member of our team.
Special thanks to Brooke Clifford for her assistance in writing this article.
